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17 Cards in this Set

  • Front
  • Back
What are the Elements of Negligence?
i. Act or Ommission
ii. Duty (For Due Care)
iii. Breach of duty (Negligence)
1. Reasonable Person Standard
2. Calculus of Risk
iv. Causation
1. Causation in fact
2. PxC
v. Damages
What standards should a negligent old man driver v. a contributorily negligent child be held to?
(2) Rule of law: Driver held to objective standard (should have kept a lookout) & child is held to subjective standard (he didn’t know any better).
Is Mental Incapacity a Defense for Negligence? How bout Intentional Torts?
(2) Rule: Mental incapacity may be used as a defense to negligently inflicted harm when the person is overcome, w/o forewarning, with a mental illness which prevents or destroys ’s ability to understand the danger of conduct & take  actions under the circumstances

INT Torts: Crazy people are responsible for their actions.
How does an imported criminal statute count in torts?
Majority: i. MAJ finds violation of statute to give rise to a conclusive presumption of negligence (negligence per se)
ii. SOME Jx’s find violation of statute gives rise to a rebuttable presumption of negligence
iii. SOME Jx’s find violation to merely be evidence of negligence.
How do you determine legislative purpose (Hierarchal Approach)
A) 4 Corners of Statute
B) Look at Preamble
C) Look at Legislative History (esp committees, then debate, hearings)
D) Canons of Construction
E) Where is the statute in the code (look at neighbors)
What are the 3 approaches with which a staute can be applied to PER SE negligence?
1) Negligence per se w/o excuses (not the law anymore)
2) MAJ VIEW: Negligence per se w/excuses to be decided by judge (i.e. emergency, etc.)
3) MIN VIEW: Rebuttable presumption (If reasonable) of Neg w/excuses to be decided by jury.
Who sits next to the Reasonable Person at Dinner?
Holmes hates the reasonable person standard and Juries

Tyndal = Reasonable Person's Godfather.
What must P prove to get a jury for negligence?
i. D’s Act
ii. Was dangerous
iii. And D had the opportunity to see the danger
iv. There were safer alternatives
v. D had an opportunity to know about the safer alternatives.
What can't an expert tell a jury?
c. Expert can’t testify as to whether or not there was reasonable action by D.

The jury can choose how much credence to give the expert.
When is res ipsa loquitor applied?
a. Highly probable that injury would not have occurred in the absence of someone’s negligence, AND
b. Highly probable that the source of the negligence is within the scope of duty owed, AND
c. P is not contributorily negligent.
What's the 50-50 req for res ipsa?
P must be able to prove the cause of the negligence beyond a preponderance of the evidence.

Chairs dropped from balconies don't meet this req, although P can recover under Negligence theory if it's foreseeable.
What must D establish for Contributory Negligence?
1) That P fell below the standard of care
2) There was contributory negligence (beyond a preponderence of evidence)
3) Causation
4) PxC
5) Injury
Who has burden of proof for Contributory Negligence cases?
ii. Burden of Proof
1. MAJ: D has burden of proof on Contributory negligence and its causal relationship to P’s harm
2. MIN: P has burden of proving he was not contributorily negligent.
What are the exceptions to the Defense of Contributory Negligence?
1. Willful and Wanton Misconduct
2. Paternalistic Statutes
3. Last Clear Chance
4. No duty to protect property from another’s negligence
5. Seat Belt Rule
6. Medical Malpractice
What are the elements of AOR?
Primary Sense - Agreement (no liability)
Secondary Sense - 1. Prosser (MAJ)
a. Voluntary Confrontation
b. Known Risk
2. James (Growing MIN)
a. Voluntary Confrontation
b. Known Risk
c. Where the risk is UNREASONABLE
Tertiary Sense-Express prior agreement (valid K, not of adhesion)
What's the vicarious liability rule?
a. Employees acting WITHIN the scope of employment are vicariously liable.
b. Indie K’s are not vicaroious liability
i. Unless there is apparrant OR
ii. Implied authority
1. Like an apparent authority.
iii. A Indie K working on another’s premises, there is vicarious liability?
iv. Inherent risk creates vicarious liability
What are the 3 PxC models?
IF SIC is Foreseeable, there's liability, if not, he's not.

Is the P foreseeable?
Is the Harm foreseeable?

3) ANDREWS—3 streams analysis (prolly not on exam)
The origin of the causation must be clear for negligence.