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32 Cards in this Set
- Front
- Back
NEGLIGENCE |
A duty by the defendant to conform to a specific standard of conduct to protect the plaintiff against unreasonable risk of injury and defendant breaches that duty, causing plaintiff injury and the plaintiff suffered actual damage |
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DUTY |
Defendant owes a duty to behave as a reasonably prudent person |
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DUTY - MAJORITY VIEW (CARDOZO) |
Defendant owes a duty only to foreseeable plaintiffs or persons within the zone of danger |
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DUTY - MINORITY VIEW (ANDREWS) |
A duty is owed to all members of society |
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RESCUERS |
Are foreseeable plaintiff's if the defendant negligently puts himself or a third party in peril |
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STANDARD OF CARE |
Defendant must act as a reasonable person in the same or similar circumstances in the same community. Reasonable person is considered to have the same physical characteristics as the defendant but expected to know his handicaps and is under a duty to exercise the care of a person w/such knowledge. Individual mental handicaps not considered. |
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NEGLIGENCE PER SE |
Clearly stated specific duty imposed by statute. It replaces the more general common law duty. Plaintiff must be a member of a class intended to be protected by the statute and defendant's conduct must be the conduct intended to protect from |
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LICENSEE |
One who enters the land w/owners permission for her own purpose or business rather than landowner benefit. Requires: 1. Plaintiff on land w/permission 2. Landowner must warn of known dangerous defects & make reasonable inspection to discover defects that could pose dangerous conditions |
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INVITEE |
One who enters the land in response to an invitation by the landowner. Requires: 1. Landowner to warn of known dangerous defects and 2. to make reasonable inspections Invitee status is lost if scope of invitation is extended |
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TRESPASSER |
One who comes on the land w/o permission or privilege. No duty owed to undiscovered trespasser |
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DISCOVERED TRESPASSER |
Once landowner discovers a trespasser, he is under duty to exercise ordinary care to warn or make safe artificial conditions that involve risk of death or serious bodily injury the trespasser is unlikely to discover. No duty for natural conditions & less dangerous artificial conditions. Must take reasonable care in operations on land |
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ATTRACTIVE NUISANCE |
Special duty for children. Requires: 1. Dangerous condition owner is/should be aware of 2. Knows/should know children frequent the area 3. Condition likely to cause injury b/c child is unable to appreciate the risk 4. Expense of remedy is slight compared to magnitude of risk |
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OMISSION |
Generally requires no standard of care. SOC applies where: 1. Assumes duty to act by acting 2. Defendant placed plaintiff in peril 3. Special relationship between parties 4. 3rd parties but only if defendant has actual ability & authority to control the third party, holds public premises open to public or is liable for negligent failure to control the child |
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NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS |
Duty breached with defendant creates a foreseeable risk of physical injury to the plaintiff. Requires: 1. Plaintiff must be in zone of danger and 2. Plaintiff must suffer physical symptoms from distress |
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NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS - BYSTANDER |
Plaintiff outside zone of danger who see's defendant negligently injury another can recover for her own distress if: 1. plaintiff & person injured are closely related 2. plaintiff present at scene of injury and 3. plaintiff personally observed or perceived event |
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AFFIRMATIVE DUTY TO ACT |
Generally, no duty to act unless: 1. Once defendant undertakes to act he must do so w/reasonable care (exception = good Samaritan laws) 2. Defendant created peril 3. Special relationship between parties 4. to prevent harm to 3rd parties |
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BREACH |
Defendant's conduct falls short of standard of care owed to plaintiff |
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RES IPSA LOQUITUR |
Requires: 1. Defendant has exclusive control over instrumentality that caused injury 2. Type of accident doesn't occur unless someone is negligent 3. Causation 4. Damages |
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ACTUAL CAUSATION |
"But for" defendant's conduct, injury to plaintiff would not have occurred |
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JOINT CAUSES |
SUBSTANTIAL FACTOR TEST Where several causes join together to bring about the injury & one of the causes standing alone would be sufficient to bring the harm, defendant's conduct is a cause in fact if it was a substantial factor in causing the injury |
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ALTERNATE CAUSES |
Two acts, one of which causes the injury, but it isn't known which one. Burden of proof shifts to defendant to show that his negligence is not the cause in fact of plaintiff's harm |
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PROXIMATE CAUSE |
Foreseeable harm. Requires defendant is liable for all consequences reasonably and foreseeably caused by defendant's conduct |
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ACTUAL DAMAGES |
Not presumed/ No nominal damages Plaintiff can recover for personal injury, emotional distress, property damage and punitive damages. Requires some proof of actual damage in the form of lost wages, pain & suffering or medical expenses |
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DEFENSES TO NEGLIGENCE - CONTRIBUTORY NEGLIGENCE |
Plaintiff's contributory negligence bars recovery - "all or none" |
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LAST CLEAR CHANCE |
In contributory negligence, the person with the last clear chance to avoid harm and fails to do so is liable |
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COMPARATIVE NEGLIGENCE |
Bars recovery if plaintiff's negligence passes a threshold (gets zero if more than 50% at fault). |
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PURE COMPARATIVE NEGLIGENCE |
Allows recovery no matter how great plaintiff's negligence is NOTE - Rule on bar exam unless otherwise stated |
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ASSUMPTION OF RISK |
Plaintiff denied recovery because she assumed risk - knew risk associated with conduct and chose to face it |
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STRICT LIABILITY |
1. Breach of absolute duty to make safe 2. Actual cause 3. proximate cause 4. damage to plaintiff's person or property |
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STRICT LIABILITY - ANIMALS |
Liable for reasonably foreseeable damage. Wild animals - strictly liable as long as plaintiff didn't cause the injury Domestic animals - strictly liable only if knew animals' propensity for danger and not common to species |
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ULTRAHAZARDOUS / ABNORMALLY DANGEROUS ACTIVITIES |
1. Risk of serious harm to person or property 2. Activity can't be performed w/o risk no matter how much care is used and 3. activity not commonly engaged in the community Liability extends only to foreseeable plaintiff's. Harm must result from anticipated danger from the activity |
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DEFENSES TO STRICT LIABILITY |
1. Contributory negligence - applies only if plaintiff knew of the danger and his conduct caused the ultra hazardous activity to fail. 2. Comparative negligence - bars recovery if plaintiff's negligence passes threshold. Requires comparison of relative negligence of plaintiff and defendant |