Torts - Negligence (Nc)

Front 1

Negligence

Back 1

Duty, Breach, Causation Damages

Front 2

Duty

Back 2

To whom do you own a duty?
- all people who are foreseeable victims of your failure to take precautions
(Did D think his action could effect P?)

Front 3

Who are Plaintiffs that are foreseeable as a matter of law?

Back 3

Rescuers - usually they are engaged in a rescuing activity

Viable Fetuses - there is a duty of care to an unborn child...even if there is no knowlege that the woman is pregnant

Front 4

Wrongful Birth - NC

Back 4

Not Recognized
NC does not recognize a child's action for wrongful life or a parent's action for wrongful birth

Front 5

Wrongful Conception - NC

Back 5

Recognized and parents may recover pregnancy costs

Front 6

What is the standard of care?

Back 6

Poindexter Rule - you must exercise the amount of care that would be exercised by a reasonable prudent person under the same or similar circumstances
-harsh, rigid, objective standard

Front 7

Defendant is expected to use superior skill or expertise for P's benefit

Back 7

Subjectivity will be used

Front 8

Defendant's physical disabilities are attributed to the reasonably prudent person

Back 8

There will be subjectivity
ex. a deaf person, what would a reasonable prudent deaf person do?)

Front 9

The reasonably prudent person standard is a fixed constant in negligence law

Back 9

not extreme care, etc.

Front 10

What degree of care must a child exercise on the MBE?

Back 10

that of a reasonable child of like age, intelligence and experience

Front 11

Rule of 7s NC - child under 7

Back 11

a child under 7 is incapable of negligence

Front 12

Rule of 7s NC - 7-13

Back 12

Rebuttable Presumption that the child is incapable of negligence

Front 13

Rule of 7s NC - 14 and older

Back 13

Rebuttable Presumption that a child is capable of negligence

Front 14

Adult Activities

Back 14

A child engaged in adult activitity is held to the adult standard

Front 15

Professionals

Back 15

A professional is required to possess and exercise the knowledge and skill of an ordinary member of that profession in good standing
- the profession itself sets the standard of care

Front 16

Medical Professionals in NC

Back 16

must conform to standards of practice among:
-members of the same health care profession with similar training AND
-experience
situated in the same or similar circumstances

Front 17

Medical Malpractice Informed Consent NC

Back 17

a health care provider will not be liable for failure to obtain informed consent if the patient either
- received enough info so that a reasonable person would understand the procedure consenting to OR
- would have accepted the treatment had he been advised as required

Front 18

Legal malpractice

Back 18

P must prove causation

Front 19

What duty of care is owed to occupiers of land?

Back 19

Depends on the source of the injury AND
the status of the occupier

Front 20

Source of the injury

Back 20

did the injury result from conduct af activity or an encouter with a static condition?

Front 21

How does the law classify the occupier?

Back 21

- Undiscovered tresspasser
- Discovered Tresspasser
- liscensee
- Invitee

Front 22

Reasonable Care Towards All Lawful Visitors

Back 22

NC has merged the liscensee and invitee status of an occupant of land

Front 23

Undiscovered traspasser

Back 23

There is no duty

Front 24

Discovered Tresspasser

Back 24

comes onto property unlawfully, but landowner knows that he is there
- Activity = RPP Standard
- Condition = protect them against artificial, highly dangerous, concealed conditions
--> Man Made death traps

Front 25

NC Discovered Tresspasser

Back 25

no duty to warn discovered tresspassers of concealed dangers
- the injured party would have to prove wanton or willful behavior and failed to exercise reasonable care in opertions of the property

Front 26

Licensees

Back 26

a social guest (people you like)
Activity = RPP
Condition = any concealed condition known to owner/occupier of land

Front 27

Invitee

Back 27

Anyone who comes onto land held upon to the public at large
Activity = RPP
Condition = condition is concealed and owner knew about it or could have learned about it by inspection
- duty to insepect

Front 28

static condition

Back 28

land possessor can satisfy her legal obligation by going to the condition and making it safer or giving warning

Front 29

if it is a child

Back 29

USE RPP standard always!

Front 30

If it is an open and obvious condition...

Back 30

entrant will almost always be liable in negligence

Front 31

Implied Warranty of Habitatability in NC

Back 31

Lessor is required to:
- comply with housing codes
- make whatever repairs are necessary to keep the premises habitable
- keep all common areas in safe condition
- maintain safe working order of facilities and appliances LL is required to provide
- provide working smoke dectros
- provide at least 1 working carbon monoxide detector for each level of the rental unit

Failure to comply is evidence of negligence, not negligence per se

Front 32

Negligence Per Se

Back 32

The statute sets the standard for the duty of care
- Did D violate the law?

Front 33

Negligence Per Se Test

Back 33

1) Class of person
- was statute designed to protect the D?
2) Class of Risk
- was statute designed to protect the type of harm suffered by D?

Front 34

Exceptions to Negligence per se

Back 34

1) compliance with the statute would be more dangerous than violating the statute
2) Compliance is impossible under the circumstances

Front 35

The Affirmative Duty to Act Rule

Back 35

There is no duty to act/rescue
- if D does act, D must take precautions

Front 36

Exceptions to Affirmative Duty to Act Rule

Back 36

- D put the P in peril
- clase family relationships
- common carrier / Innkeeper relationships
- Invitor / Invitee

Front 37

Duty to Control 3rd persons

Back 37

D must have actual ability and authority to control

Front 38

NC Good Samaritan Rule

Back 38

persons who render emergency medical treatment are not liable for damages they cause unless damages were caused by gross negligence, wanton conduct or intentional wrongdoing
- any driver in a car accident must stop and render reasonable assistance regardless of fault

Front 39

Negligent Infliction of Emotional Distress

Back 39

General Rule - there is no duty

Front 40

Zone of Danger Rule

Back 40

If the D exposed P to physical risks and P later suffers physical manifestations from distress, that gives P access to a NIED claim

Front 41

Bystander Recovery

Back 41

A bystander at the scene but outside of the zone of danger and has a close relationship with the P can recover

Front 42

NIED in NC

Back 42

P need only establish:
- D negligently engaged in conduct
- it was reasonably foreseeable that such conduct would cause the P severe emotional distress
-->Look at P's proximity in time and olace to the negligent action and consider the relationship between the victim and P, and did P personally observe the act?
AND
- the conduct did indeed cause severe emotional distress
(anything that can be diagnosed by a trained professional will do, no physical manifestations needed)

Front 43

Breach of Duty

Back 43

P must point to specific conduct, show exactly what D did that was wrong

Front 44

Proving Specific Conduct

Back 44

Evidence of Custom = always admissible, never conclusive

Front 45

Res Ipsa Loquitur

Back 45

used by desperate P's who don't know what happened.
2 requirements:
- the event is one that does not normally occur in the absence of negligence
- Show D had exclusive control over the injury causing instrumentality

Front 46

Causation

Back 46

There must be cause in fact and proximate cause

Front 47

Cause in fact

Back 47

But for test
But for D's action, would P be hurt?
- would the injury have occured anyway?

Front 48

Substantial Factor Test

Back 48

used when there are mutiple Ds in a co-mingled cause
2 Ds do something negligent that releases forces into the world - ,eet and merge into a single force that combines
Was conduct a substantial factor in the injury?
Ex. Alcoa and contamination fo Baden Lake

Front 49

Burden Shifting

Back 49

- multiple Ds and an unknown cause
- shift the burden of proof to D
(ex. 1 harmless shot, 1 innocent shot...who caused the harm?)

Front 50

Proximate Cause

Back 50

Limits the scope of D's liability
a person is only liable for those harms that are within the risk of hius activity
(***look at D's Condiuct and ask, why was this negligence in the first place? What was I worried about happening?***)

Front 51

Direct Cause Fact Pattern

Back 51

if it is foreseeable, D will be liable

Front 52

Intervening Cause

Back 52

D acts, then someone else acts, P gets hurt

Front 53

Foreseeable Intervening Cause and a foreseeable result

Back 53

P wins, there is proximate cause

Front 54

Unforeseeable Intervening Cause and Unforeseeable Result

Back 54

P will lose, outside the scope of risks

Front 55

Subseqent Medical Malpractice

Back 55

Foreseeable, D is negligent
NC - question of fact for the jury

Front 56

Negligent Rescue

Back 56

Negligent rescue is foreseeable

Front 57

Reaction Forces

Back 57

When other ppl. react to D's negligence causing some sort of injury to P
D is negligent

Front 58

Subsequent Diseases or Accidents

Back 58

subsequent accidents are foreseeable

Front 59

When will an intervening cause not cut off liability if D can anticipate the intervening cause?

Back 59

Negligence of a 3rd party
(is it possible to anticipate that others will be negligent?)

Criminal Conduct
Acts of God

Front 60

Damages

Back 60

A p must prove damages as part of her prima facie case
- past and future medical expenses
- past and future loss of income
- P's pain and suffering

Front 61

Eggshell Skull Rule

Back 61

D is laible for all resulting injury - take P as you find him

Front 62

Punitive Damages in NC

Back 62

D must be liable for some compensatory damages in the first place and the behavior must be worse than mere negligence
Limit - 3Xs compensatories or $250,000, whichever is greater
No Punitives for vicarious liability