Term
| Elements of All Negligence Claims |
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Definition
1) Duty
2) Standard of Care
3) Breach
4) Cause in Fact
5) Proximate Cause
6) Damages
7) Defenses |
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Term
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Definition
| When D is engaged in affirmative risk taking activity, he owes a duty to all foreseeable plaintiffs |
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Term
| Areas where Duty becomes an issue |
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Definition
1) Unforeseeable P
2) Nonfeasance (or failure to intervene)
3) When the harm is other than personal or property damage
4) Where D is a land possessor, a landlord, a utility, or a governmental entity |
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Term
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Definition
| Absent certain conditions, the law assumes we have no duty to intervene for the benefit of others |
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Term
| Duty to Rescue or Aid only arises when: |
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Definition
1) D's tortious conduct creates the need for rescue
2) If the D undertakes to act (and even then, some jurs only hold that you are liable if you leave the P worse off)
3) D creates reliance (I'll call an ambulance)
4) Special Relationship (Common Carrier, Innkeeper, Captain, Parent, Spouse) |
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Term
| Duty to Control 3rd Parties |
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Definition
No duty except:
1) Special Relationship that imposes a duty to control the third party
2) Special Relationship that imposes a duty to protect |
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Term
| Duty to Control 3rd Party, Parent/Child |
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Definition
| He knows or has reason to know that he has the ability to exercise control, AND knows or should know of the necessity for exercising that control |
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Term
| Duty to Control 3rd Party, Master Servant |
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Definition
Duty to exercise reasonable care to control his servant while acting outside the scope of his employment in order to prevent the servant from intentionally harming others or creating unreasonable risk of bodily harm if:
1) servant is on the premises or using a chattel of the master
2) the master knows or should know he has the ability to control, and that the necessity and opportunity has arisen |
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Term
| Duty to warn of 3rd Parties, Special Relationship |
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Definition
Psychotherapist/patient and Custodian/prisoner:
1) knows they intend to do specific harm to an identified P
2) duty arises to tell the P |
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Term
| For 3rd Party Duty (landlord/tenant, business/invitee), what circumstances have to be present to find a duty to protect from 3rd party torts or criminal acts? |
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Definition
prior similar incidents
OR in other jurisdictions, totality of the circumstances
Pretty high burden |
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Term
| When the D is a government entity, what duty rules apply? |
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Definition
Look to type of activity
Proprietary Function: Same as private entity
Discretionary Function: Courts usually won't find duty
Ministerial Function: Courts will find a duty |
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Term
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Definition
When a governmental agency is sued for failing to provide adequate responses, the court will find no duty EXCEPT
1) there has been reliance on the response of the agency
2) there is a special relationship between the P and teh agency
3) the agency has increased teh danger beyond what would otherwise exist |
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Term
| When D is a utility, what is duty? |
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Definition
| Courts limit duty to those with a contractual relationship with the utility |
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Term
| When damage is purely emotional distress, what is duty? |
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Definition
| Majority Approach: P must be in the zone of danger, and there must be a physical manifestation flowing from the distress |
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Term
| Exceptions to Emotional Damage Rule (zone of danger and physical manifestation flowing from distress) |
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Definition
Mishandling of a loved one's corpse
Misinforming of a loved one's death |
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Term
| Wrongful Birth, Wrongful Life, Wrongful Conception |
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Definition
| Probably not the right answer in an MBE question, but know the difference |
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Term
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Definition
| Duty to exercise reasonable care to prevent injuries to invitees cause by activities on the land. (inspect and make safe) |
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Term
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Definition
| Warn of Hidden (non obvious) dangers and no obligation to inspect |
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Term
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Definition
Known: warn of artificial known dangers
Unknown: only to avoid infliction of wilful or wanton harm |
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Term
| Child Trespassers (attractive Nuisance doctrine) |
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Definition
Five Factors
1) Is child too young to appreciate the danger
2) is it foreseeable that children would trespass
3) D knows of the dangerous condition
4) Usually only applies to artificial conditions
5) risk outweighs the utility of the activity/condition |
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Term
| In what situations does a landlord have a duty to entrants on land possessed by a tenant? |
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Definition
Not Liable Unless:
1) Common area that LL retains control over
2) Negligent Repair
3) Known Hidden Defect at time of Lease
4) LL knows T will hold property open to public at large |
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Term
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Definition
| Reasonably Prudent Person under Same or Similar Conditions (objective) |
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Term
| What Circumstances Considered in General Standard of Care |
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Definition
1) Physical Conditions, but not Mental Conditions
2) Emergency Conditions not of the D's making |
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Term
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Definition
| With lay person, custom is informative but not dispositive. In a majority of jurs, custom with professionals IS the standard. |
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Term
| Standard of Care with Children |
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Definition
Hybrid Subjective/Objective test: Reasonable child of same age, experience, and intelligence.
Minority use categorical approach, 7-14
EXCEPTION: if child engaged in adult or inherently dangerous activity. |
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Term
| Standard of Care: Statutory Negligence or Negligence Per Se |
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Definition
Requirements:
1) P is in the class of persons the law is meant to protect
2) Harm is of the type the statute is meant to protect against.
3) No excuse for violation of the statute |
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Term
| What does a finding that statute applies in Neg Per Se mean |
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Definition
Majority: unexcused violation conclusively establishes breach of duty
Minority: rebuttable presumption or prima facie evidence |
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Term
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Definition
General Practitioners: Professional custom in the same or similar locality
Specialists: Professional custom at the national level |
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Term
| Lack of Informed Consent in MedMal |
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Definition
Used to be battery claims, but now only if gross deviation
Traditional standard: Doctor must disclose those risks which are customarily divulged
Newer/Materiality Standard: Doctors must divulge all material risks: those that a reasonable patient would want to know in deciding whether to get the procedure (and don't forget that you still have to prove causation though) |
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Term
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Definition
1) This is the type of thing that does not normally happen absent negligence
2) The D is probably the responsible party (used to be exclusive control)
3) P did not contribute to his injury
RESULT: Jury may infer breach of duty, gets you past summary judgment |
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Term
| Common Knowledge Exception in MedMal Breach of Duty issues |
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Definition
| A form of Res Ipsa, where P doesn't have to put on expert testimony. Classic example is leaving in a sponge |
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Term
| Multiple Defendants/Unaware Victim |
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Definition
1) Very narrow exception
2) Group of people acting as a unit (typically a medical team)
3) Unknown whose breach their duty
4) Apply joint and several liability to "smoke out" the responsible party |
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Term
| Cause in Fact Issues Arise When: |
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Definition
1) Multiple D's
2) Loss of Chance
3) Alternative Liability Theory
4) Market Share Liability |
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Term
| Cause In Fact: Multiple Defendants/Act of Nature |
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Definition
| When you can't say for sure because there are multiple independent causes. Use Substantial Factor Test. Results in Joint and Several Liability, where P can sue one or all, and D's can sue for contribution |
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Term
| Cause in Fact: Loss of Chance |
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Definition
| P has to prove more likely than not, that but for the malpractice, P would not have lost that chance of recovery |
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Term
| Alternative Liability Theory (Summers v. Tice) |
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Definition
1) Small number of D's
2) Each of whom is negligent
3) All before the Court
4) and can't determine which is cause in fact
THEN burden shifts to D's to prove they were not the cause, and otherwise joint and several liability |
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Term
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Definition
Unforeseeable extent of harm
Unforeseeable type of harm
Unforeseeable manner of harm
Superseding Intervening Cause |
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Term
| Proximate Cause: Unforeseeable extent of harm |
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Definition
| Not taken into account. Eggshell P rule, you take the P as you find him. |
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Term
| Proximate Cause: Unforeseeable type of harm |
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Definition
| Use foreseeability of the risk rule |
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Term
| Proximate Cause: Superseding Cause, General types |
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Definition
1) Act of God
2) Criminal Acts of 3rd Persons
3) Intentional Torts of 3rd Persons
4) Extrordinary forms of Negligent Conduct
BUT watch out mainly for exceptions to these general categories on the MBE |
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Term
| What types of things are NOT superseding causes |
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Definition
Subsequent Negligent Conduct
Negligent efforts to protect property
Future accidents/incidents where the original injury was a substantial factor in the subsequent injury
NOTE, D owes independent duty to rescuers, and is liable for their negligent conduct and personal or property damage to themselves, person rescued or strangers |
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Term
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Definition
Special:tangible, quantifiable
General: intangible, like pain and suffering |
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Term
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Definition
| Compensation to a P from a 3rd party (insurance, gifts) does not reduce recovery from D. Compensation from joint tortfeasors does reduce recovery. |
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Term
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Definition
Contributory Negligence/Comparative Fault
Assumption of Risk |
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Term
| Traditional Contributory Negligence |
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Definition
| if any degree of negligence, no recovery |
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Term
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Definition
Recovers according to fault apportionment
AND joint and several liability survives the apportionment (P=15%, D1=10%, D2=75%, D1 still on the hook for 85%) |
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Term
| Modified Comparative Fault |
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Definition
| Recovers according to fault, but only if P not as negligent as D |
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Term
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Definition
| Can be express (waiver) or implied (actions like sports), Last Clear Chance Doctrine can apply |
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Term
| Implied Assumption of the Risk |
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Definition
1) P knew of the risk (subjective)
2) Understood the risk
3) Voluntarily undertook to expose himself to it |
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Term
| What if a business owner puts up a warning sign, like "wet floor?" |
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Definition
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Term
| What if a business owner puts up a warning sign, like "wet floor?" |
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Definition
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Term
| Exception to general rule that employers not liable for torts of independent contractors... |
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Definition
| When the contractor is engaged in an inherently dangerous activity (fumigation, explosive, dangerous construction conditions in an urban area) |
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Term
| Joint tortfeasors and indemnity for liability |
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Definition
Applies in varied situations
1) Where one is only negligent, and the other is intentional, then intentional tortfeasor is deemed to indemnify for entire amount of damage
2) Same result, but with passive and active tortfeasor (most common situation)
3) When there is a great disparity in tortfeasors degree of fault |
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Term
| Employee is negligent, employer gets sued and loses. Can employer get anything from employee? |
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Definition
| Yes, employer can seek indemnity. |
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