Negligence Mbe Foundation

Front 1

Duty

Back 1

An obligation that D conform to a certain standard of conduct for the protection of others against unreasonable risk.

Act as a Reasonable Prudent person.

Front 2

Special Relationship Duty

Back 2

D must aid P if a special relationship exist.

1. Employer/employee
2. Teacher/student
3. Inkeeper/customer
4. Parent/child
5. Business/patron
6. Jailer/prisoner

Front 3

Duty of Care (Trespasser known & unknown)

Back 3

No duty owed to an unknown trespasser. If trespasser is known, they become a licensee

Front 4

Duty of Care (Licensee)

Back 4

Licensee is a Friend, you owe a duty to warn of known dangers.

Front 5

Duty of Care (Invitee)

Back 5

Invitee is a consumer. Anyone who has the opportunity to spend $. Here, there is a duty to:

1. Inspect, AND
2. Make Safe

Front 6

Attractive Nuisance

Back 6

Subjective Standard

1. An artificial dangerous condicion
on the land.
2. Possessor knows, or should
know of the dangerous condition.
3. The child because of his youth,
age, or immaturity fails to
appreciate the danger.
4. The utility of maintaining the
dangerous condition is slight
compared to the risk.

Front 7

Negligence Per Se

Back 7

Statute establishes standard of care.
Statute is designed to:

1. Prevent this type of injury, AND
2. Protect this class of plaintiff.

NN: If Neg Per Se not applicable, use Negligence as alternative.

Front 8

Res Ipsa Loquitur

Back 8

1. Accident does not normally
occur absent negligence on the
part of D, AND
2. The instrumentality causing the
accident was within D's
exclusive control.

NN: When Res Ipsa established, P has a prima facie case and no directed verdict will be granted for D.

Inference of Negligence

Front 9

Independent Contractor

Back 9

Hired for a particular job, reason, and time. They are professional, thus they are liable, UNLESS the IC is involved in:

1. Extremely Hazardous (blasting), OR
2. Non-delegable work

NN: Non-delegable duty - where IC works above, around. There are civilians underneath. The opportunity for people to get injured is high.

Front 10

Contributory Negligence

Back 10

1. Negligent P is barred from recovery

Minority Rule - don't follow on the MBE

Last Clear Chance - Negligent P can still recover if he can show the D had the last clear chance to avoid the harm.

NN: This is only used in a contrib.
jurisdiction.

Front 11

Comparative Negligence

Back 11

Negligent P recovery is reduced by the percentage of his own negligence.

Pure (Bar Exam) - P can recover
even if her
negligence
exceeds D's
negligence.

Modified - recovery only if P's negligence is less than D's

NN: No Last Clear Chance Rule.

Front 12

Joint Tortfeasors

Back 12

Where combined negligent acts of two or more tortfeasors cause an indivisible injury (cannot apportion), each tortfeasor is held jointly and severally liable.

Front 13

Collateral Source Rule

Back 13

If contribution comes from P's side, D will not benefit from payment. The amount D owes will not be reduced.

Rationale - P pays premium and is entitled to this benefit.

Front 14

Foreseeable Intervening Causes

Back 14

1. Negligent rescue
2. Subsequent medical malpractice
3. Subsequent disease
4. General negligence

If Foreseeable, D (original tortfeasor) remains liable

Front 15

Unforeseeable or Superseding Causes

Superman breaks chain

Back 15

1. Acts of God
a. Lightning
b. Flood
2. Intentional torts of 3rd parties
3. Intentional crimes of 3rd parties

If unforeseeable, D is not liable

Front 16

Strict Liability applies in what 3 instances.

Back 16

Applicable in 3 areas

1. Abnormally dangerous activity
2. Wild Animals (type of injury you expect running and fall , AND
3. Strict Products liability

Front 17

What are Dangerous activities

Back 17

1. Flammable products (not fireworks)
2. Blasting
3. Crop dusting

NN: utmost care is irrelevant

Front 18

Strict Products Liability

Back 18

One who sells a product in a defective condition unreasonably dangerous to the user or consumer is held strictly liable for the harm or injury that is caused.

Front 19

Defenses to Strict Liability

Back 19

1. Assume the risk (subjective, can only assume risk that you know).
2. Adequate warning
3. Product misuse

Front 20

Consumer Contemplation Test

Back 20

1. Foreseeable or ordinary user - can recover for strict liability.

2. Thief is not foreseeable and cannot recover under strict liability.

Front 21

Misrepresentation

Back 21

1. False statement
2. Scienter (deliberate or knowingly)
3. Intent to induce P to act
4. Justified reliance
5. Damages

Front 22

Negligent Misrepresentation

Back 22

1. Duty of care based on special
relationship (usually economic).
2. A representation that is false or
misleading.
3. D negligently made the
representation.
4. Reasonable reliance by P.
5. Damages.

Front 23

Private Nuisance

Back 23

Where disturbance creates a substantial and unreasonable interference with the use and enjoyment of one's property.

Objective Standard - a person who is sensitive (difference damages) will lose.


NN: Coming to the Nuisance
Wrong!!!!

Front 24

Public Nuisance

Back 24

Something that effects everyone the same (toxic waste, smog). The public is injured and the attorney general brings the action for the people.

Private Individual can use if:

1. They are not in this group, AND
2. Attorney general does not rep
their interest, AND
3. They suffer a special harm.

Front 25

Defamation

Back 25

1. Defamatory statement of fact not
opinion.

2. Publication to a 3rd party who
understands the message.

3. Damages
a. General presumed
b. Special required, Except for
i) Libel, AND
ii) Slander Per Se

4. Standard of Proof
a. public official/figure - Malice
b. private person
i. public concern - Negligence
ii. private concern - Publication

Front 26

Misrepresentation

Back 26

1. False statement
2. Scienter (deliberate or knowingly)
3. Intent to induce P to act
4. Justified reliance
5. Damages

Front 27

Negligent Misrepresentation

Back 27

1. Duty of care based on special
relationship (usually economic).
2. A representation that is false or
misleading.
3. D negligently made the
representation.
4. Reasonable reliance by P.
5. Damages.

Front 28

Private Nuisance

Back 28

Where disturbance creates a substantial and unreasonable interference with the use and enjoyment of one's property.

Objective Standard - a person who is sensitive (difference damages) will lose.


NN: Coming to the Nuisance
Wrong!!!!

Front 29

Public Nuisance

Back 29

Something that effects everyone the same (toxic waste, smog). The public is injured and the attorney general brings the action for the people.

Private Individual can use if:

1. They are not in this group, AND
2. Attorney general does not rep
their interest, AND
3. They suffer a special harm.

Front 30

Defamation

Back 30

1. Defamatory statement of fact not
opinion.

2. Publication to a 3rd party who
understands the message.

3. Damages
a. General presumed
b. Special required, Except for
i) Libel, AND
ii) Slander Per Se

4. Standard of Proof
a. public official/figure - Malice
b. private person
i. public concern - Negligence
ii. private concern - Publication

Front 31

Slander Per Se
No Special Damages Needed

Back 31

Defamatory Statement is about:
1. Loathsome disease
2. Unchaste to a woman
3. Improper conduct in trade or job
4. False accusation of a crime

Front 32

Tortious Interference with a K

Back 32

1. Existence of a K or beneficial
business relationship.
2. Knowledge of relationship by D.
3. Intent to induce a party to
breach K or sever relationship.
4. Damages to P

Front 33

Invasion of Privacy

Back 33

1. Appropriation - normal v. celeb
2. False Light - untrue image
3. Intrusion upon seclusion - paparazzi
4. Public disclosure of private facts