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25 Cards in this Set
- Front
- Back
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Elements of Negligence
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Duty, Breach, Cause in Fact, Legal Cause, Damages
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Duty
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Duty to conform to standard of care and conduct
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Breach
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Failure of duty; Substandard care
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Cause in Fact
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Causal connection between misconduct and injury
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Legal Cause
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Injury within array of risks sought to be prevented by imposition of duty; Foreseeability of injury
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Negligence Per Se
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Violation of statute; Must be in class protected; Must be harm prevented by statute
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Excusable violations of statutes
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Impossible to comply; Reasonable effort to comply has been made; 3d person intervention; Doesn't know nor should know of occasion for compliance; emergency not of own making; compliance increases risk of harm
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Res Ipsa Loquitur
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Accident does not occur when one is not negligent; Caused by an agent or instrument under exclusive control of defendant
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Substantial Factor Test
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Two forces--one because of actor's negligence--and each force is sufficient to bring about harm, actor's negligence is a substantial factor of harm and is a cause in fact of harm
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Alternative Liability
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The conduct of two or more actors is tortious but cannot be certain of who caused the harm, the burden shifts to defendants in proving who was cause of harm
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Concerted Action
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Defendants who have an understanding to participate in a common plan to commit a tort are liable to plaintiff; includes encouragement.
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Lost Opportunity
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When medical provider negligently caused plaintiff to lose an opportunity for survival, defendant liable for loss of opportunity. Damages can be 100% or percentage chance lost.
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Joint and Several Liability
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Single, indivisible injury caused by multiple actors, both defendants can be held liable for 100% of injury or percentage of fault.
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Mechanism Rule
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If harm is within array of risk, how the injury occurs is irrelevant.
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Eggshell Skull Rule
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Take the victim as you find him
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Acceptance Rule of Privity of Contract
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When one accept a piece of construction from an independent contractor, the owner takes full responsibility for it; no duty for contractor
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Humanitarian Exception to Acceptance Rule
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When piece is inherently dangerous or dangerously defective, contractor is liable for injuries sustained by foreseeable 3d parties using the equipment in an appropriate manner, even if already turned over to owner.
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Volunteer Exception
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One who engages in service (rescue) has duty to use care to not unreasonably endanger person or property
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Zone of Danger Rule
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A plaintiff can recover in the absence of physical impact if the force is aimed at and put plaintiff in danger of physical contact.
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Bystander Rule
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Allows plaintiff to recover in absence of physical impact and outside zone of danger when she is close to accident, contremporaneously views accident, and has a close relationship with victim.
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Elements of Attractive Nuisance
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Owner knows kids likely to trespass; Unreasonable risk of harm or death created by artificial condition; kids don't know of danger; maintenance is slight; owner failed to use care to eliminate danger
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Trespasser (Duty)
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Avoid wanton and willful injury
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Habitual or Discovered Trespasser
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Reasonable care in conduct of activities and operations
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Licensee
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Duty to warn of known hidden dangers; No duty to inspect
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Invitee
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Reasonable care; warn of dangers; duty to inspect and make safe
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