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40 Cards in this Set

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general rule re: duty to rescue
if you have done nothing to place the individual in the position of peril, there is absolutely no duty to rescue
exceptions to the general rule that there is no duty to rescue
1. special relationship btwn P and D
2.
Good Samaritan Statute
you are liable if willful or wanton negligence—if you stop to render aid and injure/exaggerate injury
what is the majority/minority rule re: duty when the only injury is economic loss?
Majority rule—no duty if the only injury is economic, b/c the only cause of action is in contract
Texas/minority rule—if the economic loss was foreseeable, there is a duty
what is pure economic loss? what two categories are there?
Arises when a person suffers pecuniary loss not consequent upon injury to his person or property
1. Negligent misrepresentation or misstatement causing economic loss; and
2. Negligent acts causing economic loss
emotional distress
Injury to the person of the P, but limited to the mind of the P
mental anguish
injury limited to the mind of the P which prevents them from performing those daily tasks of life which, until the injury, they could perform with ease (eating, sleeping, concentrating, etc)
what is the general rule concerning the duty owed by owners and occupiers of land outside the premises?
No duty owing to individuals off the premises as to natural conditions, no matter how foreseeable the risk
natural conditions
condition on the land untouched by man (i.e. rivers, lakes, hills, avalanches, rockslides, waterfalls, caves, etc) has not been changed, modified, or altered in any way—“as God created it”
what is the exception to the general rule that there is no duty owed by owners and occupiers of land outside the premises?
trees
what is the majority view concerning the tree exception and the duty owed by landowners outside the premises?
in a rural area, we follow the common law rule of no duty; but in an urban area, we require the landowner to exercise “ordinary care” (RPP)
what is the evolving/minority view concerning the tree exception and the duty owed by landowners outside the premises?
can no longer make distinction between rural/urban—landowner must instead use ordinary care in all circumstances (due to greater foreseeability of harm, denser population, etc); however common law rule on all other natural conditions apply
Once you change, alter, or modify a natural condition, what is the duty?
must exercise ordinary care and are responsible for foreseeable consequences
what is the general rule concerning the duty owned to trespassers on the premises?
no duty—trespasser takes the premises as they find it, and are entitled to no protection
however: presence cannot be anticipated
what is the majority rule concerning the duty owned to trespassers on the premises?
once owner becomes aware of the trespasser’s presence, he owes the duty of ordinary care (must do or not do what a RPP would do or not do under the circumstances)
what is the TX rule concerning the duty owed to trespassers on the premises?
if there is a trespasser on the property of another, no duty; once you become aware, you are required not to injure them intentionally or through gross negligence
duty of reasonable lookout
TX RRs have “duty of reasonable lookout” for individuals and cattle
Licensees
Individuals whose presence on the property of another is said to “tolerated” and as such they are considered to be like family
what is the general rule concerning duty owed to licensees on the premises?
no duty, but once we know they are on the property, we must exercise ordinary care of those dangerous conditions of which we have knowledge
what is the majority/restatement rule concerning duty owed to licensees on the premises?
must warn licensee of dangers of which you know or of which you should know
what is the tx rule concerning duty owed to licensees on the premises?
once you know of their presence, you must warn them of those conditions of which you have actual knowledge
when we can’t decide between trespasser or invitee/business invitee, we often go with -----
licensee
what is the traditional rule re: duty owed to invitees on the premises?
business guest; one that comes onto the property of another for the financial gain of the occupier
what is the modern rule re: duty owed to invitees on the premises?
one who comes onto the property of another for the purpose for which this property is intended to be used
what is the majority/tx rule re: duty owed to invitees on the premises?
invitee is one upon the land of another and he has entered for the purpose for which that property is maintained
what is the general rule concerning the duty of a lessor to lessee?
once the LL lessor leases property and conveys possession and control of the premises, they are “untouchable”—they have absolved themselves of any and all duty and liability
what are the 6 exceptions to the general rule concerning the duty of a lessor to lessee?
i. Lessor who conceals or fails to disclose any dangerous condition, whether natural or artificial
ii. Lessor transfers in a condition which he realizes or should have realized would cause a danger to those outside the premises
iii. Premises leased for admission of the public
iv. When lessor retain possession/control of common areas
v. Where the lessor contracts to repair
vi. When they are making repairs in a negligent manner
what is the tx rule re: duty of the LL re: criminal activity?
no duty to rescue, but where there is control of the premises, notice, and risk is foreseeable, there is a position that the LL is responsible to those individuals coming on to the property
Doctrine of Last Clear Chance
even if P was CN, if the D had the last clear chance to avoid the injury, the P could recover even if CN
elements of the last clear chance doctrine
1. D discovered the P’s perilous position;
2. in time to avoid the injury;
3. by the exercise of ordinary care, consistent with the means at hand
does tx follow the Doctrine of Last Clear Chance
no
minority view: comparative negligence
follow the PURE form of comparative negligence: if the D was 1% negligent, and the P was 99% contributorily negligent, the P can recover 1%
majority view: comparative negligence
follow the MODIFIED form of comparative negligence, either
1. Allows the P to recover as long as their contributory negligence does not exceed 50%; or
2. Allows the P to recover as long as their contributory negligence is not as great as the negligence of the D (49% would be limit—50%, no recovery)
which modified form of comparative negligence does tx follow?
P can recover as long as their contributory negligence does not exceed 50%
Exculpatory clause
clause in agmt whereby one party contractually limits the amount of their liability
when will an exculpatory clause be upheld as valid?
1. There was a equality in the bargaining positions of each party
2. Whether the party had notice
3. Whether there was mutual assent
when will an exculpatory clause be held invalid?
1. When the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence;
2. When the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other’s negligence; and
3. When the transaction involves the public interest
Implied assumption of risk
aka volenti non fit injuria—“he who submits to the injury cannot complain”; “he who agrees to the risk cannot thereafter be heard”
Elements of volenti non fit injuria
1. Individual does in fact know of the risk
2. They did in fact appreciate
3. Knowing and appreciating, did they voluntarily expose themselves to it
are the elements of volenti non fit injuria analyzed from a subjective or objective perspective?
fact questions for jury—subjective, not objective test-NO RPP, no SHOULD HAVE KNOWN