Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
51 Cards in this Set
- Front
- Back
|
To rely on res ipsa, a P needs what? |
Need not conclusively eliminate the possibility of all other causes of injury. It is enough that the evidence supporting the PEA elements provides a rational basis that the injury was caused by D's negligence. res ipsa usually comes with a motion to dismiss or SJ in a question
|
|
|
Negligence Per Se occurs when? |
Absent a valid excuse, the violation of a statutory safety standard of care is negligence per se, which gives rise to a conclusive presumption of negligence that a jury must accept. |
|
|
To be entitled to negligence per se, P must establish what 3 things? |
|
|
|
Because negligence per se gives rise to a presumption, if D does not rebut this evidence with a valid excuse for violating the statute, then the jury must do what? |
Find against D on the liability issue.
|
|
|
Most licensing statutes and vehicle registration statutes are not susceptible to negligence per se. Why is this? |
They are primarily revenue raising, do not seek to prevent harm, and do not necessarily seek to protect any class of persons.
|
|
|
In NY (but not MBE), the violation of a local safety ordinance or of an administrative agency's safety requirement is not negligence per se and is what? |
Deemed only some evidence of negligence, which the jury may consider.
|
|
|
Negligence per se does not apply where? (3 things) |
1. even with diligence and care, D could not have complied with the safety statute 2. the defendant acted in an unanticipated and sudden emergency or 3. violating the statute was safer than complying with it. |
|
|
A - Assumption of Risk (AR) defense asserts what and applies where? |
The AR defense asserts that P assumed a known risk of foreseeable harm. It can be asserted as a defense for claims for negligence or even strict liability. In MBE, but not NY, P may even assume the risk of D's reckless conduct. AR does not apply to intentional torts. A person may consent to a battery, but may not assume the risk of it. P may either (a) expressly or (b) impliedly assume the risk of D's tortious conduct. |
|
|
An express AR arises where? |
Express AR arises where a P orally or in writing (usually in an exculpatory clause or a release) releases another from future tort liability. It is an express agreement prior to P's injury that D does not owe P a duty of reasonable care. An express release of liability is a complete bar to P's negligence claim. The law will enforce express agreements that exculpate or limit a party from the consequences of its own negligence, but in NY, that release must be expressed in unmistakably clear language mentioning the word, "negligence". |
|
|
Under an express AR, NY does not enforce the following 4 express written releases, list and explain them. |
1. a release in a construction contract of the strict liability arising under Labor Law 240 and 241. 2. a release by recreational users of swimming pools, health clubs, and other places of public amusement where a fee is charged. Such a release is enforceable if the facility is used purely for instructional purposes rather than for recreational use. The court will examine the organization's name, certificate of incorporation, and whether it charges a tuition or a fee. 3. a written NY or MBE release of D's reckless or intentional conduct is against public policy 4. a release signed by a parent will not bind the minor. Such a release must be approved by the court. |
|
|
What is an implied AR? |
Implied AR is not based on an express contract or release. It arises when P voluntarily encounters and is injured by a known "common and apparent risk of harm". In MBE, the plaintiff may impliedly assume even the risk of D's reckless conduct. For D to assert the implied AR defense, the plaintiff must've been able to accept or reject the risk. Thus, if D's conduct foreclosed, all safe and reasonable alternatives, then AR is not voluntary and the defense does not apply. In NY, assumption of risk is a complete bar to P's recovery in negligence cases involving 1. express assumption of risk and 2. implied primary assumption of risk where P is injured by a common and apparent risk while a participant or a spectator in a sporting event or recreational activity. A defendant is not liable for common and apparent risks voluntarily assumed by P, but he may be liable if the risks he causes are not common and apparent or he unreasonably increases those risks. NY courts have recognized that implied assumption of risk does not fit well with comparative negligence and have limited its application to baring claims for injuries arising out of athletic and recreational activities. |
|
|
What are Danger Invites Rescue (DIR)? |
An existing danger invites a rescue. A tortfeasor who has placed herself or another in danger is liable for the injuries suffered by someone who comes to the rescue of the endangered person. A rescue is deemed foreseeable and thus injuries arising therefrom are deemed proximately caused by the original wrongdoer. DIR also applies to the rescue of endangered property including that of the negligent defendant. DIR also applies in strict products liability cases. For DIR to apply, the rescuer must've had a reasonable belief that the person being rescued was in peril. The reasonableness of a decision to intervene is generally a question of fact. The rescuer's gross negligence, recklessness, or bizarre act may constitute a superseding cause cutting off the liability of the original defendant. |
|
|
What is the Firefighter Rule? |
MBE police and fire personnel do not benefit from the DIR doctrine. Under the Firefighter Rule, they assume the increased risks inherent in their dangerous employment and the public as a whole rather than an individual tortfeasor bears the cost of emergency injuries to firefighters and police. DIR does not prevent fire or police personnel from suing for negligence where the injury does not arise from the heightened danger of an emergency. It also does not apply to intentional torts. By statute, NY limits the firefighter rule so that now it may only be invoked by a firefighter or police officer's employer or co-employee. As to private defendants, the defense is abolished. (Completely abolished in NJ). |
|
|
The Emergency Doctrine states what? |
When a person is confronted with an unexpected and sudden occurrence leaving little room and no time to think, she will not be found negligent if her actions were reasonable under the emergency circumstances. A D faced with an emergency is not obligated to exercise her best judgment. |
|
|
A person acting in an emergency situation is not held to the ordinary standard of care unless 1 of 2 things occur. What are they? |
1. D created the emergency or 2. D should have reasonably anticipated the emergency. |
|
|
In NY, drivers of what are granted immunity for civil liability for negligence and are liable only for reckless conduct? |
1. emergency vehicles (EMS, fire, or police cars) involved in an emergency or 2. any private or public hazard vehicles (a snow plow, street sweeper, or tow truck) engaged in highway repair, construction, or maintenance are granted immunity for civil liability for negligence and are liable only for reckless conduct. The injured P must prove that the risk was so great under the circumstances that it was highly probable that D's conduct would result in an injury to P.
|
|
|
The emergency vehicle exception permits the drivers of such vehicles to disregard the ordinary rules of the road, but only to US SOS. What does US SOS stand for? |
U – an unlawful turn S – passing through a stop sign on a red light after slowing down S – speed O – wrong direction on a one-way street S – speed If not engaged in US SOS then the regular negligence rules apply. An emergency vehicle other than a police car also must activate its lights and siren. |
|
|
What is the Liability for Conditions on Real Property? |
In about 1/2 of the states, tort liability arising from an existing dangerous condition on land depends on the duty owed to the person entering the land. The plaintiff's purpose for the visit generally determines her status and the duty owed. The person may be an invitee, licensee, or a trespasser. |
|
|
What is a trespasser?
|
A trespasser takes the land as he finds it, including with existing latent dangerous defects and wild or vicious domestic animals that may attack. |
|
|
Is duty of reasonable care owed to trespassers?
|
Generally no duty of reasonable care is owed to a person entering the land who could be sued for trespass except to avoid intentionally or recklessly harming the trespasser. (i.e. the possessor may not willfully injure the trespassers and must refrain from acts indicating a difference and disregard for human safety). |
|
|
What happens once a possessor becomes aware of trespasser’s presence?
|
Once a possessor becomes aware of a trespasser's presence, a duty of care arises to avoid injuring the trespasser and to warn the trespasser of any known latent conditions posing a risk of death or serious injury. If the possessor is aware that part of his land is frequently used by trespassers, a duty arises to take reasonable precautions to prevent harm to them. If a possessor discovers that a trespasser is trapped or injured and helpless, then the possessor must act reasonably to provide affirmative assistance even though the possessor did not cause the harm in the first place. |
|
|
What is a Licensee? |
A licensee enters the land with the possessor's express or implied consent for the licensee's own personal purpose. (e.g. friends, guests, or solicitors). A possessor owes a licensee a duty to warn the licensee of only known latent dangerous defects. No liability arises if a licensee is injured by a hidden danger of which the possessor was unaware even though it could've been discovered by inspection. Once a possessor learns of a concealed dangerous condition, she then has a duty to repair it or warn the licensee of its existence. |
|
|
What is an Invitees? |
An invitee is a person who enters land that either is 1. open to the public even if only to use the bathroom or change a dollar bill or 2. a private premises to bestow some benefit on the possessor (e.g. to pick up or deliver goods or make repairs. This includes a mail carrier, garbage collector, or meter reader, but not a door-to-door salesperson or police/fire personnel who are considered licensees). |
|
|
What is the duty owed to an invitee?
|
The duty owed to invitees requires the possessor to reasonably inspect and discover latent dangerous conditions and to repair or warn invitees of their existence so as to make the premises safe for the invitee. Lack of actual knowledge of the danger by the possessor is not a defense because the duty owed to the invitee is to reasonably inspect those areas onto which the invitee may come. |
|
|
When is constructive notice of hazardous condition necessary?
|
The possessor is deemed to have constructive notice of a hazardous condition when the condition is visible and apparent and has existed for a sufficient length of time to afford the possessor of a reasonable opportunity to discover and remedy it. |
|
|
Will a warning suffice as a removal of danger?
|
A warning may suffice to remove a danger unless the condition remained unreasonably dangerous despite the warning, in which case the possessor owes a duty to eliminate it. |
|
|
Is there a duty to warn if the dangerous condition is open and obvious?
|
In NY and most jurisdictions, there is no duty to warn if the dangerous condition is open and obvious. However, even where the danger is open and obvious, the possessor has a duty to make the premises safe. Liability for injuries due to such conditions will be analyzed under the comparative negligence test. |
|
|
Where does invitee liability extend to?
|
Invitee liability extends only to those areas that are open by the invitation. By going outside that area, the invitee becomes either a trespasser or a licensee depending on whether she had the owner's express or implied consent. |
|
|
Trespassing Children: The doctrine of attractive nuisance treats trespassing children as invitees even though they are trespassers on the land. The elements for attractive nuisance are what 5 things? Explain. |
1. the possessor knew or should have known that an artificial condition posed an unreasonable risk of death or serious injury to trespassing children 2. the risk of harm was not likely to be recognized by the children 3. the place where the danger exists is one that the possessor knows or has reason to know that children are likely to trespass. 4. the financial burden of correcting the danger was outweighed by the risk of harm to trespassing children and 5. the possessor breached its duty by failing to use reasonable care to eliminate or reduce the danger to trespassing children. Attractive nuisance liability does not extend to those conditions and risks that children should have realized and appreciated. The attractive nuisance need not be what initially attracted the trespassing children onto the land. NY does not recognize the attractive nuisance doctrine, but in essence applies it based on the doctrine of foreseeability of harm and the duty or reasonable care to make the premises safe. |
|
|
What is covered under the Modern Trend? |
Under the modern trend, about 1/2 the states have adopted a "reasonable care" standard by which the possessor owes a duty to anyone (NY) or anyone other than a trespasser who enters the land regardless of her status as a trespasser, invitee, or licensee. Rather than focus on P's status, these states focus on the conduct of D and whether D maintained the property in a reasonably safe condition under the circumstances. |
|
|
What is the scope of possessor’s duty?
|
The scope of the possessor's duty is defined by the foreseeable unreasonable risks to persons entering the property. The duty is to take reasonable measures to discover defects and prevent injury to any person whose presence was reasonably foreseeable. (NJ follows common law of trespasser, licensee, and invitee). |
|
|
NY determines the reasonableness of the possessor's conduct based on what 3 things? |
1. the probability of an injury 2. its seriousness and 3. the ease and cost of extinguishing the risk. The use to which the property is put and the frequency of that use by others weigh heavily in determining theses factors. |
|
|
What duty is owed on land open to the public?
|
On land open to the public, a duty is owed by the private possessor who knows or should know someone will visit or illumination will avoid a hazard, they must turn on the lights. |
|
|
A plaintiff who slips and falls on D's property must prove that a latent dangerous condition existed and that D did one three conditions, what are these conditions? |
1. created the dangerous condition 2. had actual notice of its condition or 3. had constructive notice of it because it had existed for a sufficient length of time prior to the accident such that D had time to discover and correct it. |
|
|
Can a possessor of realty insulate itself from tort liability by delegating the duty to maintain a reasonably safe premises to an independent contractor? |
No, a person who employees an independent contractor is ordinarily not liable for the independent contractor's negligence except for a non-delegable duty such as to provide a reasonably safe premises.
|
|
|
NY's labor law imposes strict liability and a non-delegable duty on whom? |
Both an owner of realty and a general contractor of a construction site to provide adequate safety in the manner and method in which CCRAPED activity is performed.
|
|
|
Under Labor Law 241, P must allege what? |
That his injury was proximately caused by a violation of a specific safety regulation set forth in the NY industrial code, which sets NY state's minimum safety protective standards for CCRAPED activity.
|
|
|
What must be alleged under Labor Law 240? |
There is also a non-delegable duty for property owners and general contractors under Labor Law 240 (the scaffold law) to prevent gravity-related accidents involving CCRAPED activity on buildings or structures.
|
|
|
To recover under Labor Law 240, the injured worker must prove what? |
That the owner or GC breached its duty to provide adequate safety devices to protect against risks arising from a "physically significant elevation differential". By statute, the worker's comparative negligence cannot be asserted and the liability of the GC and owner is absolute even where the owner exercised no control or supervision. The only available defense is the recalcitrant worker defense where safety equipment was available, but the worker refused to use it.
|
|
|
Who is exempt from the strict liability where the owner did not direct or control the work?
|
Owner occupants of 1 and 2 family dwellings are exempt from the strict liability where the owner did not direct or control the work. |
|
|
Who do possessors owe a duty to?
|
Possessors owe a duty of reasonable care to avoid endangering others on the public way or on an adjoining property. |
|
|
When is liability imposed?
|
Liability is imposed if the condition on the land subjects neighbors or passersby to unreasonable risk of harm. |
|
|
Possessors owe a duty not to create what? |
An unreasonably dangerous condition that could injure passersby who might inadvertently stray onto the land immediately adjacent to the public way.
|
|
|
What are recreational use statutes and limits? |
Most states including NY have a recreational use statute that limits a landowner's duty of care to land open for public recreational use. There is no duty to warn or keep the land in a safe condition for gratuitous recreational users of the land. Liability is imposed only for willful or malicious acts or omissions.
The statute was not intended to apply to municipalities that have opened land for parks or other supervised recreational use. |
|
|
What is Municipal Tort Liability? |
Common law sovereign immunity still shields government entities from liability for the exercise of government functions that are discretionary (as opposed to ministerial) duties requiring the exercise of reasonable judgment capable of achieving different accepted results.
|
|
|
Who has NY waved sovereign immunity to and under what stipulations?
|
NY has waived sovereign immunity for ministerial government functions, but only upon a showing of a RAID special relationship. |
|
|
Is a municipality liable to individual plaintiffs?
|
Generally, a municipality is not liable to individual plaintiffs for the nonfeasance of its basic governmental (ministerial) functions (i.e. such as negligently failing to provide adequate police or fire protection or failing to provide adequate security in the subway or to teachers in a school). No tort liability is imposed for its failure to enforce the law or perform a duty owed to the general public. The municipal tort doctrine simply states that because we a duty to everyone, we owe a duty to no one. |
|
|
As a condition for NY waiving sovereign immunity for ministerial functions, the injured plaintiff must be more than a member of the public at large. She must've established a special relationship with the government agency involved. A special relationship is created when RAID. Explain what RAID means. |
R - the injured plaintiff justifiably relied on the municipality's promise or its affirmative undertaking. The promise must lull the injured party into a false sense of security inducing her to either relax her own vigilance or forego other avenues of protection. (Look at February exam question 4). A - expressly or impliedly through promises or prior actions, the municipality voluntarily agreed to act for P's benefit and assumed a duty to P different from the rest of the general public. I - the municipality knew that its negligent inaction could foreseeably harm P. D - some direct contact between P (or his parents or spouse) and the municipality. |
|
|
Where the government's inaction arises while acting in its capacity as a property owner or landlord, the municipality is subject to what? |
The same tort liability as a private landowner.
|
|
|
A municipality owes a duty to exercise reasonable care where? |
In maintaining its streets, sidewalks, and parking lots, but a condition precedent to that liability is a receipt of a pre-accident written notice of the dangerous condition under the pothole law. The pothold law notice requirement is not applicable where the city created the dangerous condition that immediately resulted in an accident.
|
|
|
When dealing with municipal torts, remember 2 important things – what are they? |
|
