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113 Cards in this Set

  • Front
  • Back
Everyone has a duty not to affirmatively act in a manner to create an _____ risk of harm to others.
unreasonable
There is __ duty to take precautions against events that are not ___ ___.
no; reasonably foreseeable
DUTY
a duty is only owed to ____ plaintiffs.
foreseeable
DUTY
Rescuers are foreseeable as long as the rescue is ____.
reasonable
DUTY
What is the Firefighters Rule?
a majority rule that bars firefighters and police from recovering for injuries suffered during a rescue.
DUTY
Generally there is no duty to aid someone in need of help. What are the exceptions?
A duty to render aid exists if:
(1) a special relationship exists, or
(2) if someone causes another's injury or places another in peril (even absent fault).
DUTY
under the "special relationship" exception to the rule that there is no duty to aid someone in need of help, what are the special relationships that do create a duty to help?
Special relationship exists between:
• parent-child
• hotel-guest
•employer-employee
•common carrier-passenger
•business person-customer (invitee)
•social host-guest (licensee)
DUTY
a person who begins to help must ____ the help with reasonable care.
complete
DUTY
if the jurisdiction has a good samaritan "statute" liability of good samaritans (person who comes to the aid of another) will only be liable for ___ ___.
gross negligence
DUTY
are doctors under a duty to come to the aid of a injured person?
No.

Doctors have no duty to come to the aid of another in need of help.
DUTY
Generally there is no duty to control __ persons and prevent that third person from committing a tort.
third
DUTY
What are the exceptions to the rule that there is no duty to control third persons or prevent that third person from injuring others.
• parent has duty to control children

•employer has duty to control employees

•[by statute]
STNRD OF CARE
Generally, ∆s are held to what standard of care?
OBJECTIVE standard of reasonable care.

--hypothetical ordinary prudent person under the same circumstances

note: regardless of the type of activity all ∆s are held to the ordinary prudent person standard.
STNRD OF CARE
is insanity a defense to negligence?
No
STNRD OF CARE
are physical disabilities considered in deciding reasonableness?
Yes.

e.g., blind persons are held to a reasonable blind person standard
Child Standard of Care?

What is reasonable for a child of like __, knowledge, __, intelligence and experience.
age; education
STNRD OF CARE
if a child engaged in adult activity (like driving a care) we apply an ___ standard.
adult

*if child drove a car--the child would be held to the standard of an average ordinary prudent person under the circumstances
STNRD OF CARE
while the rule is that less experienced adults are NOT held to a lower standard of care, will a court consider whether a ∆ has above average knowledge/education or greater experience in determining reasonableness?
Yes.

Though the converse is not true, ∆s with greater knowledge/education and greater experience will be considered in deciding whether they acted reasonable.
Professional Standard of Care (malpractice)?
What is reasonable for an average member of the profession in the same or similar COMMUNITY.
Specialists Standard of Care?
similar to the professional standard of care, but extra knowledge is considered and specialists are judged by a NATIONAL standard.

note: today most doctors are specialists.
if "Guest Statute" driver owes ____ rider __ than reasonable care. Driver only liable for __ negligence or reckless conduct.
nonpaying; less; gross
if "Guest Statute" it only applies if the plaintiff-rider is suing the driver of the car they were riding in.
Guest Statutes do not apply if the plaintiff-rider is suing the driver of the other car or someone other than the driver of the car they were in.
Thus, the driver of the other car is held to duty of reasonable care.
Attractive Nuisance Doctrine applies if:

(duty owed to CHILD trespasser)
(1) dangerous artificial condition;
(2) ∆ knew or should have known kids are likely to come by the dangerous artificial condition;
(3) π-child was incapable of appreciating the danger;
(4) the expense of making the artificial condition safe is slight compared to the danger.

note: the artificial condition need NOT be the motive for the child's trespass.
if P is injured by an ACTIVITY on ∆'s land, ∆ owes a duty of reasonable care for all types of Ps except:
undiscovered trespassers.


thus: if P was a discovered, anticipated, or child trespasser; licensee; invitee and was injured by an ACTIVITY the owner or occupier of the land owes them the duty of reasonable care.
What duty do owners and occupiers of land owe to undiscovered trespassers?
None.

-no duty of care is owed to undiscovered trespassers regardless of whether they were injured by a natural, artificial or activity on ∆s land.
Does owner/occupier of land owe a duty to discovered or anticipated trespassers injured by an artificial condition on ∆'s land?
No, unless discovered or anticipated trespasser was injured by a DANGEROUS artificial condition.
If dangerous artificial condition, ∆ has duty to warn or make safe.
What is a LICENSEE?
a social guest, or person on ∆'s property for his own economic benefit, not for the economic benefit of the owner/occupier of the land.
What is an INVITEE?
BUSINESS invitees are on ∆'s property for economic benefit of ∆.
-ex: customers, persons accompanying customers, repair persons in ∆'s home.

PUBLIC invitees are on ∆'s property for a public purpose.
-ex: church attendees, museum tourists, airport passengers
What duty is owed to licensees regarding natural or artificial conditions on ∆'s property?
if non-dangerous condition:
--NO duty

non-obvious dangerous condition known to ∆:
--duty to warn, but no duty to inspect and no duty to repair
What duty is owed to invitees regarding natural or artificial conditions on ∆'s property?
if non-dangerous condition:
--NO duty

non-obvious dangerous condition known to ∆:
--duty to warn, and reasonably inspect & make repairs.
How does the duty owed to licensees differ from that owed to invitees regarding natural or artificial conditions on ∆'s property?
if the condition is non-obvious, dangerous, and known to ∆: duty to REASONABLY INSPECT owed only to INVITEES.

for this type of condition BOTH (invitees and licensees) are owed a duty to warn or make safe.
For non-obvious dangerous conditions (artificial or natural) known to ∆, does ∆ owe a duty to reasonably inspect to licensees?
No.

-duty to make reasonable inspection of premises and if defect found make repair is only owed to invitees.
garbage collectors and mail carriers are treated as ____.
invitees
under normal circumstances--during working hours, census takers, health inspectors, meeter readers are treated as ____.
invitees
Repairmen inside ∆'s home is treated as ___.
invitees
under the "firefighters rule" police officers and firefighters are generally treated like ___.
licensees
Do the performance of minor services for the host (property owner) convert the social guest into an invitee?
No
the owner or occupier has a duty to exercise _____ care in the conduct of "active operations" for the protection of a licensee he knows to be on his property.
reasonable
an owner occupier always owes the duty of reasonable care to child trespassers and if an artificial condition is considered an attractive nuisance he must:
make the artificial condition safe if the expense of making the unnatural condition safe is slight compared to the danger.
as to invitees, if a reasonable warning is given regarding dangerous conditions, is the duty to make safe satisfied?
Yes, generally
Does an owner/occupier have a duty to warn if the dangerous condition is so obvious the invitee should reasonably have been aware of it?
usually NO duty to warn invitees of dangerous condition that the invitee should reasonably been aware of.

*'obviousness' of a dangerous condition is determined by circumstances
for the violation of a statute to be negligence per se, what three things must be true?
1) violation of statute was w/out excuse (balance of harm of complying vs. harm if violated);
2) type of harm must be same type of harm statute was aimed at preventing;
3) plaintiff must be member of class of persons the statute was intended to protect.
in negligence, in order for P to recover damages for emotional distress, the majority view requires some ____ injury or symptom and the P must have been injured w/in the ___ of danger
physical; zone
INTERVENING CAUSES:
An intervening cause is third person conduct or an ___ which occurs subsequent to ∆'s tort, and which causes ____ harm to P.
event; additional
INTERVENING CAUSES:
If the intervening cause is _____, ∆ is liable for the additional harm to P.
foreseeable
INTERVENING CAUSES:
if the intervening cause was ____, it is superseding, and ∆ is ___ liable for added harm.
unforeseeable; not
INTERVENING CAUSES:
medical malpractice is considered a superseding (unforeseeable) OR subsequent (foreseeable) cause?
foreseeable

*medical malpractice is always a foreseeable intervening cause, and thus ∆ is liable for the additional harm
INTERVENING CAUSES:
crimes and intentional torts are generally held to be ____.
unforeseeable.

*generally, crimes and intentional torts are held to be unforeseeable, and thus a superseding cause, and ∆ is NOT liable for added harm
Proximate cause means that the ___ suffered by P was reasonably ___ to ∆ at time of ∆'s negligent act.
harm; foreseeable
For proximate causation, the ___ of harm must be ___, but ___ the ___ of the harm.
type; foreseeable;
not; extent

*'you take your victim as you find them'
Proximate cause does NOT extend to ____ harm suffered by third persons.
economic
Cliff negligently burned down the offices of Big Oil, can Jane, a secretary sue Cliff for lost wages b/c she is out of work?
No.

*proximate cause does NOT extend to economic harm suffered by third persons.
ACTUAL CAUSATION
use the "but for" test when there is __ tortfeasor.
one

*if more than one tortfeasor DON'T use "but for" test
ACTUAL CAUSATION
where there is more than one negligent actor (multiple tortfeasors) use the ___ ___ test.
substantial factor
ACTUAL CAUSATION (joint causes)
where several causes concur to bring about an injury--and any one cause alone would have been sufficient to cause the injury--it is sufficient if ∆'s conduct was a ___ ___ in causing the injury.
substantial factor
ACTUAL CAUSATION
if two ∆s acted jointly, __ ∆s are actual cause of P's __ injury
all; entire
ACTUAL CAUSATION
if two ∆s did NOT act jointly, if negligence of __ one would have caused the ___ injury, each ∆ is actual cause of entire injury.
either; entire
ACTUAL CAUSATION
if two ∆s did NOT act jointly, and the negligence of both ___ to cause greater injury than would have resulted from the separate negligence of each, each ∆ is actual cause of ___ injury.
combined; entire
ACTUAL CAUSATION
if two ∆s did NOT act jointly, and P is injured by negligence of __, not both, and it is IMPOSSIBLE to determine which ∆ caused injury, __ ∆s are viewed as the actual cause, unless one ∆ can prove the other was the actual cause.
one; both/all

*where two or more persons have been negligent, but uncertainty exists as to which one caused P's injury; under the alternative causes approach P must only prove that harm was caused to him by one of the tortfeasors (w/ uncertainty as to which one). The burden shifts to the ∆s to prove his negligence was not the actual cause.
"factual cause" or "cause in fact" is another word for __ __.
Actual Cause
"Legal cause" is another word for __ __.
Proximate Cause
Before the ∆'s conduct can be considered a proximate cause of P's injury, it must first be cause in __ of the injury.
fact
When ∆'s negligent act was the "DIRECT CAUSE" of P's injury, will there be any intervening causes?
No.

*a 'Direct Cause' is one where the facts present an UNINTERRUPTED CHAIN of events from the time of the ∆'s negligent act to the time of P's injury.
Where there is an uninterrupted chain of events from the time of the sole ∆'s negligent act and the time of the P's injury, ∆'s negligent act is considered the ___ cause.
direct
where ∆'s violation of a statute prevented greater harm than that which would have been caused had ∆ complied with the statute, can P claim that ∆ was negligent per se?
NO
____ damages are required for negligence.
Actual
Types of damages available in negligence?
[non-exclusive list]

• pain and suffering (past / future)

• medical expense (past / future)

• loss of consortium
under the "collateral source" rule, P's medical insurance [is] or [is not] deducted from the award.
IS NOT

*P's medical insurance is not deducted--collateral source rule
the measure of damages for property damage is the reasonable cost of ___, OR, if the property is almost or completely destroyed, its __ __ value at the time of the accident.
repair; fair market
the majority rules is that a P can recover PUNITIVE damages if ∆'s conduct was "wanton and willful, reckless, or ___.
malicious
Certain items are not recoverable as damages in negligence actions. These include:
1) interest from date of damage in personal injury action; and

2) Attorney's fees
Is "interest" from date of damage in a negligent personal injury action recoverable?
No.
Are attorney's fees recoverable in negligence?
No.
At trial may ∆ introduce evidence that P received sick pay from employer in an attempt to have the award reduced?
No.

*the "Collateral Source" rule says that benefits received by P from other sources (e.g, health insurance, sick pay from employer) are not deducted from the damages.
Are damages ever presumed in negligence?
No.


cf, some intentional torts
P's failure to ___ damages precludes recovery of additional damages caused by ___ of the injury.
mitigate; aggravation


*in all cases, P has a duty to take reasonable steps to mitigate damage.
Does the failure to mitigate damages mean P was contributorily negligent?
No.


*failure to mitigate damage reduces damages, i.e, the extra damages caused by P's failure to reasonably mitigate are not part of the damages award.
Does the 'last clear chance' doctrine apply in comparative negligence jurisdictions?
No, only in contributory negligence jurisdictions.
.



*conrib has not been tested on the MBE in 25yrs. But, it applies if question says 'traditional' rule.
in the majority of comparative negligence jurisdictions, "assumption of the risk" ___ recovery.
REDUCES

.
*this is the majority rule--assumption of risk is treated as comparative fault.
cf, common law assumption of risk was a bar to recovery.

note also that assumption of the risk is NOT a defense to intentional torts.
[possible trend!]

Dmgs for infliction of emotional distress may be available by an act which by itself is likely to result in physical symptoms, even absent any physical impact or close physical impact. An example of this is:
medical doctor's negligent false diagnosis of a terminal illness of P.
if P was comparatively negligent, P's recovery is __ by the __ of fault attributable to P.
reduced; percentage
Which is the MAJORITY rule: [pure comparative negligence] or [partial/modified comparative negligence]?
COMPARATIVE NEGLIGENCE (aka, pure comparative negligence) is the majority rule.

*on MBE use [pure] comparative negligence unless told otherwise
in a "partial" or "modified" comparative negligence jurisdiction, if the P is more than 50% responsible for injury, P is awarded ___.
NOTHING

*thus if P was 50.5% at fault he barred from recovering.
Strict liability is liability without ___.
FAULT
an "abnormally dangerous activity" is defined as:
an activity that involves HIGH RISK of harm which cannot be eliminated no matter how much care is taken, and the activity is unusual for the area.
While there is strict liability for harm caused by wild animals, strict liability for domestic animals requires ___ of the animals __ propensity.
knowledge; dangerous
is assumption of the risk a defense in strict liability?
Yes.

-∆ will not be held strictly liable, but P may still recover in negligence
in a strict liability action, is it a defense that P was an "undiscovered trespasser"?
Yes.

-∆ will not be held strictly liable
an owner occupier of land need not warn trespassers of dangerous natural conditions, but if trespassers are known or anticipated to be on the premises, property owner has a duty to ___ of hidden man-made risks.
WARN

*hidden man-made risks is another phrase for 'dangerous artificial condition.'
When must a landowner warn trespassers of a dangerous natural condition?
NEVER

-owner/occupiers owe no duty to trespassers, discovered or not. Except: child trespassers are owed duty of reasonable care.

*remember: attractive nuisance ONLY applies to man-made conditions.
except for child trespassers, landowners owe no duty to trespassers (undiscovered, known, or anticipated). However, landowners do have a minimum duty not to do what?
as to adult trespassers: landowners have a minimum duty not to use traps or spring guns in order thwart or hurt trespassers or burglars, nor otherwise intentionally hurt them.

*malicious or intentional acts will subject landowners to liability for injuries to trespassers.
NEGLIGENT PRODUCTS LIABILITY:
•unreasonable conduct involving manufacture or sale of a product which is actual and proximate cause of P's injury.

•P must be reasonably foreseeable victim.

•privity NOT needed

[more on back]
•typical ∆ is manufacturer, but also includes seller and component part maker.

•negligent failure to discover a defect is not a superseding cause. Thus, if the seller is negligent in failing to correct a manufacturer's negligence, the manufacturer remains liable.
If P was an unforeseeable victim, can he sue the ∆ for negligent products liability?
NO
STRICT PRODUCTS LIABILITY:

what is it?
no fault liability for injury caused by a product which is defective and unreasonably dangerous
STRICT PRODUCTS LIABILITY:

P must prove (1) DEFECT, and (2)......?
that the product is UNREASONABLY DANGEROUS
STRICT PRODUCTS LIABILITY:

to prevail, P must first prove DEFECT. Defect can be in ___, manufacture, ___ or instruction.
design; warning
STRICT PRODUCTS LIABILITY:

an unreasonably dangerous product is defined as ..... or ......
an unreasonably dangerous product is defined as:
(i) product dangerous beyond what an ordinary consumer would contemplate; or
(ii) whether a less dangerous alternative is economically feasible
STRICT PRODUCTS LIABILITY:

is a foreseeable unintended use a defense to strict products liability suit?
NO.

*To be a defense the use must be unintended and unforeseeable.
STRICT PRODUCTS LIABILITY:

aside from proving the defect and unreasonable dangerous elements, the P must also prove CAUSATION.
Causation: the defect must have caused the injury.

-look for a substantial change since the time the product left ∆.

*if the defect did not injure ∆, but rather the defect only injured the product itself, P's claim fails
STRICT PRODUCTS LIABILITY:

The ∆ must be a "commercial supplier."
Commercial suppliers include:
• sellers and lessors in the regular business of selling and leasing,

• the manufacturer,

• component part maker
STRICT PRODUCTS LIABILITY:

examples of a non-commercial supplier and thus an improper ∆ are:
•garage sales.

•loans from neighbors.
STRICT PRODUCTS LIABILITY:

P bought an unreasonably dangerous product from his neighbor and the product defected and injured him. Can P sue his neighbor in strict products liability?
no
STRICT PRODUCTS LIABILITY:

if P subjectively knew product would injure them is this a defense?
Yes, assumption of the risk is a defense
STRICT PRODUCTS LIABILITY:

-does not apply to services.
look at for blood transfusion or organ transplant <-- these are services and strict product liability doesn't apply
There is no strict liability for unavoidably ___ products, e.g., knives and chemotherapy drugs.
dangerous
There is no vicarious liability for independent contractors (IC), unless IC is engaged in ___ ___ activity or ___ duty.
inherently dangerous; nondelegable
to prevail in an attractive nuisance case, must the P establish that the ∆ was aware of the dangerous condition on his land?
No
true/false

the reasonable person is considered to have the same mental characteristics as the ∆.
false.

*the "reasonable person" is considered to have the same PHYSICAL characteristics as the ∆
Whether ∆ breached the duty of care is a question of [fact] or [law]?
FACT

*whether a breach occurred is a question for the trier of fact
Which of the following is NOT a typical dependent intervening force:

(a) subsequent med-mal
(b) negligence of rescuers
(c) acts of God
(d) "reaction" forces
(c) acts of God

- these are independent intervening forces, and if foreseeable will not cut off ∆'s liability for the extra harm caused
If the plaintiff establishes res ipsa loquitur, it will have the following effect:
a directed verdict will not be given to the ∆.
The Federal Tort Claims Act (FTCA) waives immunity for ____.
NEGLIGENCE

*no punitive damages or strict liability claims permitted
For res ipsa to apply, what two things must P show?
(i) in the absence of someone's negligence this type of thing doesn't occur; and
(ii) that ∆ had exclusive control of the instrumentality.