Term
| Negligent acts or omissions |
|
Definition
| Tortfeasor behaved unreasonably either by doing a specific careless activity or failing to do something that he should have done |
|
|
Term
| Elements of Negligence (Threshold Questions) |
|
Definition
| The action or failure to act of an ordinary, prudent, reasonable person in a particular situation that (1) breaches a (2) duty of reasonable care to avoid injury to foreseeable plaintiffs that (3) actually and proximately causes (4) a reasonably foreseeable injury. |
|
|
Term
|
Definition
| The degree of care a person of ordinary prudence (the so-called reasonable person) would exercise in similar circumstances |
|
|
Term
| Duty of Due (Reasonable) Care |
|
Definition
| The responsibility to act reasonably so as to avoid injuring others, or not to behave unreasonably. Duty is an "obligation, recognized by the law, requiring the person to conform to a certain standard of conduct, for the protection of others against unreasonable risks." |
|
|
Term
|
Definition
| The limitation/range of people to whom one owes a duty. Those individuals who might foreseeably be injured as a result of your actions |
|
|
Term
|
Definition
| The expectation that a specific action, under particular circumstances, would produce an anticipated result. |
|
|
Term
| Foreseeable plaintiffs theory |
|
Definition
| Was it reasonably foreseeable that the person injured would be harmed as a consequence of the tortfeasor's action? If so, the scope of duty includes the victim. |
|
|
Term
|
Definition
| Persons whose injuries the tortfeasor could not reasonably have anticipated as a result of his actions |
|
|
Term
| Special Relationships creating duty to act |
|
Definition
| Employer/Employee; Parent/Child; Teacher/Student; Innkeeper/Guest; Hospital/Patient; Common Carrier/Passenger |
|
|
Term
|
Definition
| A person who comes to the assistance of another without being required to act |
|
|
Term
|
Definition
| Although a person is not obligated to come to the aid of another, once assistance is attempted, the Good Samaritan has the obligation to do no harm |
|
|
Term
|
Definition
| When a person's actions fall below a certain standard of care. Failure to take reasonable care under the circumstances. |
|
|
Term
|
Definition
| The notion that a specific action, under particular circumstances, would produce an anticipated result |
|
|
Term
|
Definition
| If an injury is foreseeable, then one should take precautions to avoid the behavior that might be expected to cause harm. If not, duty has been breached. |
|
|
Term
| Tests for Standard of Reasonable Care |
|
Definition
| Depends on the particular facts of each problem. Reasonable person standard. Cost-Benefit Analysis of Behavior. Matching skills and abilities. |
|
|
Term
| Reasonable Person Standard |
|
Definition
| What would a reasonable person have done in the same or similar circumstances? Reasonable person is an imaginary individual who is expected to behave reasonably under a given set of circumstances to avoid harming others. |
|
|
Term
| Cost-Benefit Analysis of Behavior |
|
Definition
| 1. Foreseeability of harm. 2. Foreseeability of serious injury. 3. Effort needed to prevent harm. 4. Benefit to society of the behavior. |
|
|
Term
| Matching Skills and Abilities (or handicaps/limitations) |
|
Definition
| The reasonable person is supposed to resemble the defendant as closely as possible in terms of special abilities, or in terms of limitations |
|
|
Term
| Professional Community Standard of Care |
|
Definition
| The standard of reasonable care used in negligence cases involving defendants with special skills and knowledge. |
|
|
Term
| National Standard of Care |
|
Definition
| Standard for experts is now a national standard in most jurisdictions. |
|
|
Term
|
Definition
| A professional's negligent failure to observe the appropriate standard of care in providing services to a client, or misconduct while engaging in the practice of a profession. |
|
|
Term
| Standard of Care as applied to Children |
|
Definition
| Judged by comparison to behavior of children of the same age, intelligence, and experience. A child of tender years (usually ~5 is not capable of negligence |
|
|
Term
| Standard of Care as applied to People in Emergencies |
|
Definition
| Judged in comparison to how a reasonable person would have acted under the same emergency situation (as long as he wasn't the person who caused the emergency) |
|
|
Term
| Standard of Care as applied to People with Disabilities |
|
Definition
| Judged in comparison to the reasonable person sharing the same kind of disability. Jury must conceptualize. |
|
|
Term
| Standard of Care as applied to Mentally Ill |
|
Definition
| Generally held to the objective Reasonable Person standard |
|
|
Term
| Causation of Injury (two factors) |
|
Definition
| Cause-in-fact and proximate cause |
|
|
Term
|
Definition
| The misconduct produced / resulted in the injury. Actual and factual cause. But for the tortfeasor's actions, the victim would not have been harmed. Immediate, direct, and dominant cause of injuries. |
|
|
Term
| Substantial Factor Analysis |
|
Definition
| A test for indirect causation. The tortfeasor is liable when his conduct was a substantial factor in producing the harm. |
|
|
Term
| Joint and Several Liability |
|
Definition
| When two or more persons who jointly commit a tort (act in concert) are held liable, both together and individually. |
|
|
Term
| Sequence of combined events |
|
Definition
| Aspect of joint and several liability. Multiple tortfeasors acting in sequence rather than simultaneously. Sequence of combined events produced harmful results. Contribution to sequence of events. |
|
|
Term
|
Definition
| The sharing of payment for a judgment among persons who are all liable. The right of a person who has paid an entire judgment to get back a fair share of the payment from another person who is also responsible. |
|
|
Term
|
Definition
| A contract to reimburse another for actual loss suffered. |
|
|
Term
|
Definition
| Reimburses party for actual losses or damages sustained |
|
|
Term
|
Definition
| A payment of a specified sum upon the occurrence of a specific event, regardless of actual losses or damages |
|
|
Term
|
Definition
| The legal cause of an injury. Not necessarily the closest thing in time or space to the injury. The tortfeasor's actions caused a foreseeable injury to the victim. The zone within which the plaintiff's injury was reasonably foreseeable as a consequence of the defendant's behavior. |
|
|
Term
|
Definition
| Was the victim's injury a reasonably foreseeable result of what the tortfeasor did? If so, then the actions proximately caused the plaintiff's harm and a duty is owed. Key to proximate cause. |
|
|
Term
| Foreseeability -- two distinctions |
|
Definition
| Scope of duty examines whether it was reasonably foreseeable that the PLAINTIFF would be injured. Proximate cause focuses on whether the INJURY itself was reasonably foreseeable. |
|
|
Term
|
Definition
| Something that goes on or occurs between the original act of negligence and the injury caused. |
|
|
Term
|
Definition
| An intervening cause that becomes the proximate cause of an injury. |
|
|
Term
|
Definition
| Money that a court orders paid to a person who has suffered damage/loss/harm by the person who caused the injury. |
|
|
Term
|
Definition
| Damages awarded for the actual loss suffered by the plaintiff. To make the plaintiff whole |
|
|
Term
|
Definition
| Damages for the loss of enjoyment of life or value of life. |
|
|
Term
|
Definition
| Damages that naturally result from the harm caused by the defendant's actions. |
|
|
Term
| Specific Damages / Consequential Damages |
|
Definition
| Compensatory damages that are specific to a particular plaintiff |
|
|
Term
|
Definition
| The loss of a spouse's services (companionship, sexual relations) |
|
|
Term
| Economic vs. Noneconomic Damages |
|
Definition
| Out-of-pocket expenses vs. pain, humilitation |
|
|
Term
|
Definition
| Small or symbolic damages awarded in situations in which no actual damages have occurred, or the amount of injury has not been proven even though a right has been violated in an intentional tort action. |
|
|
Term
| Punitive (Exemplary) Damages |
|
Definition
| Extra money (over and above compensatory damages) given to a plaintiff to punish the defendant and to keep a particularly bad act from happening again. (Rare in negligence cases) |
|
|
Term
|
Definition
| Recklessly or willfully acting with a deliberate indifference to the effect the action will have on others. |
|
|
Term
| Taking the victim as you find him |
|
Definition
| A theory in negligence cases stating that the victim's injuries were reasonably foreseeable even if the tortfeasor was unaware of the victim's peculiar physical, health, or other preexisting conditions. |
|
|
Term
| Burden of Proof (Negligence) |
|
Definition
| Plaintiff must prove defendant's negligence beyond a preponderance of the evidence that all negligence elements existed |
|
|
Term
|
Definition
| A case that will be won unless the other side has evidence to disprove it. Proof has been established by or beyond a preponderance. |
|
|
Term
| Burden of Rejoinder, Burden of Persuasion, Rebuttal |
|
Definition
| The defendant's burden of proof to refute the plaintiff's evidence in a lawsuit. Rebuttal: Evidence that disproves what the other party has offered. |
|
|
Term
|
Definition
| The thing speaks for itself. A rebuttable presumption (a conclusion that can be changed if contrary evidence is introduced) that a person is negligent. (When a plaintiff is in a disadvantaged position to prove negligence because of lack of evidence. Negligence is presumed as a result of defendant's actions. |
|
|
Term
| 3 Elements of Res Ipsa Loquitur |
|
Definition
| A rebuttable presumption that a person is negligent (1) because of having exclusive control of the object or action that produced the victim’s injury, (2) which ordinarily would not have happened unless negligence was involved, and (3) where the defendant is in a better position to prove lack of negligence than victim is to prove negligence. |
|
|
Term
| Res Ipsa Loquitur - Element 1: Defendant's Exclusive Control |
|
Definition
| The events that led to the injury must have been under the defendant's exclusive control (including defendant's employees) |
|
|
Term
| Res Ipsa Loquitur - Element 2: Presumption of Negligence |
|
Definition
| The plaintiff's injury is one that would normally not have happened unless negligence was involved. |
|
|
Term
| Res Ipsa Loquitur - Element 3: Defendant's Superior Proof Position |
|
Definition
| The defendant must be in a better position to prove that he was not negligent than the plaintiff is to prove defendant's negligence. |
|
|
Term
| Violation of a Statute in a Negligence Claim |
|
Definition
| Was a statute also in fact violated? Did the violation cause or play a significant role in the accident? Was the person injured the type of person the statute was intended to protect? |
|
|
Term
|
Definition
| A pleading objecting to the sufficiency of the complaint, stating that even if everything the plaintiff alleges is true, it still does not state a cause of action and the case should be dismissed. "So what?" |
|
|
Term
| Motion for Summary Judgment |
|
Definition
| A motion for judgment claiming that there is no genuine issue of material fact to be decided in a case. |
|
|
Term
|
Definition
| A professional's negligent failure to observe the appropriate standard of care in providing services to a client or patient. |
|
|
Term
|
Definition
| When a medical provider's treatment of a patient falls below the standard of care and causes injury or death. Doctor did something or neglected to do something and fell below the standard of care owed to the patient |
|
|
Term
| Hospital Non-responsibility |
|
Definition
| Hospital is not responsible for independent contractor's medical malpractice EXCEPT 1. when hospital uses contractor whose services are known to be negligent 2. In ER setting when a patient can't be advised of doctor's status as a contractor. |
|
|
Term
| Tort Reform Issues for Medical Malpractice |
|
Definition
| State licensing and legislation to regulate medical malpractice. Federal legislation, but requires argument that regulations require national uniformity. Cap on damages. |
|
|
Term
| Certificate of Merit (Medical Malpractice) |
|
Definition
| System in many states that requires each medical malpractice case to be certified by a medical doctor as having merit. The certificate must be filed with the court. An evaluation that some potential for negligence exists. |
|
|
Term
| Medical Malpractice Panel |
|
Definition
| A group that usually consists of an independent attorney, a judge, and a physician to evaluate the merits of a medical malpractice claim. |
|
|
Term
|
Definition
| When an attorney's behavior falls below the standard of care owed to the client, and damages occur. Standard of reasonably prudent care in same jurisdiction or ABA Model Rules of Professional Conduct |
|
|
Term
| To prove legal malpractice |
|
Definition
| Actual errors that fell below standard of care. That the plaintiff would have prevailed at trial. That damages awarded would have been collectible. |
|
|
Term
| Consequences for legal malpractice |
|
Definition
| Damages. Reporting to state disciplinary board. Sanctions (fine, public or private censure, suspension, disbarment) |
|
|
Term
|
Definition
| When a law firm fails to supervise an outside vendor, its attorneys, or its staff, and during the course of discovery confidential privileged documents are revealed. |
|
|
Term
|
Definition
| The attorney has the client's trust and confidence, and in return must act in good faith, being honest and loyal. |
|
|
Term
| Case within a case / Underlying case |
|
Definition
| The original case for which a legal malpractice action is being sought. |
|
|
Term
|
Definition
| To publicly or privately criticize or condemn the acts of an attorney |
|
|
Term
|
Definition
| The unethical mixing of a client's money with that of an attorney |
|
|
Term
| Special Negligence Actions |
|
Definition
| Cases involving certain well-defined activities. Special rules of negligence apply in these cases. |
|
|
Term
|
Definition
| Legal responsibility of one person (principal) for the acts of another, subordinate person (agent), who was acting on the principal's behalf. Typical principal/agent relationship is employer/employee. |
|
|
Term
|
Definition
| "Let the Master answer." The principle that an employer is responsible for most harm caused by an employee acting within the scope of employment. If so, there is vicarious liability. |
|
|
Term
|
Definition
| The range of actions that the employer expects/authorizes the employee to perform as part of the job. Liability is within the scope of employment. |
|
|
Term
|
Definition
| Conduct of an employee that falls outside the scope of employment, that is purely for the benefit of the employee. An employer is not responsible for the negligence of an employee on a frolic of his own. (Modern view: slight deviation in distance and time is excluded) |
|
|
Term
|
Definition
| Rule used when employees commit torts while coming to or going home from work. In such cases, employers are usually not liable, unless employee doing something work-related |
|
|
Term
|
Definition
| A person who contracts with an "employer" to do a particular piece of work by his own methods and under his own control. Employer does not control how he does his job. |
|
|
Term
| Vicarious Liability for Independent Contractors? |
|
Definition
| Persons hiring independent contractors are NOT vicariously liable for the contractor's negligence. Hirer is simply buying the contractor's finished service. |
|
|
Term
|
Definition
| (Someone's negligence imputed to someone else) Someone is blamed for something based merely on his relationship with the other person |
|
|
Term
| Motor Vehicle Consent Statutes |
|
Definition
| Statutes imposing vicarious liability on owners for the negligence of others who drive their vehicles. |
|
|
Term
|
Definition
| Individuals who do not own but who do use real estate. Includes tenants/lessees. |
|
|
Term
| Scope of Duty for Premises Liability |
|
Definition
| Plaintiff's status as a trespasser, licensee, or invitee determined the scope of duty that the owner owed. (modified now, and not relevant in CA, where the Duty owed is based on standard of reasonable care to protect from harm) |
|
|
Term
| Zero Duty towards Trespassers |
|
Definition
| Where there's a distinction between trespasser, licensee, and invitee: Landowner owes no duty of reasonable care to protect a trespasser from harm. |
|
|
Term
| Special Rule for Trespassing Children: Attractive Nuisance |
|
Definition
| Where Zero Duty toward Trespassers: Landowners owe a higher duty of reasonable care to trespassing children. |
|
|
Term
| Attractive Nuisance Doctrine |
|
Definition
| If a person keeps dangerous property in a way that children might be attracted to it, then he is responsible if children get hurt. |
|
|
Term
|
Definition
| Any item that is dangerous to young children but that is so interesting and alluring as to attract them. |
|
|
Term
| Four-part test for attractive nuisance doctrine |
|
Definition
| (1) The owner must know or have reason to know of the artificial structure, instrumentality, or condition that is (2) dangerous yet alluring to children, who cannot know or appreciate the danger, and (3) whose presence the owner must reasonably have anticipated. (4) The danger posed to the children outweighs the cost of making the condition safe. |
|
|
Term
| American Law Institute Restatements of the Law |
|
Definition
| Secondary sources of law that summarize the legal principles discussed in common law decisions. Restatement of Torts. Restatement (Second) of Torts. Restatement (Third) of Torts. |
|
|
Term
| Section §339 of Restatement (Second) of Torts |
|
Definition
| Doesn't matter if nuisance is attractive to children. 1. Injury to trespassing child was foreseeable. 2. Danger presented unreasonable risk to trespassing children. 3. Danger on the land was artificial/manmade [some delete this point] 4. The child couldn't appreciate/discover the risk. 5. The threatening condition was in a place children likely to trespass. 6. Landowner failed to exercise reasonable care to protect children from the harm. |
|
|
Term
|
Definition
| Persons who have permission to be upon another's land. Landowner has consented (expressed or implied) to their presence upon his realty. / A person who is on the property with permission but without any enticement by the owner and with no financial advantage to the owner. |
|
|
Term
| Landowner's Duty of Care toward Licensees (vs. trespassers) |
|
Definition
| Owners owe licensees a duty of reasonable care in using the real estate, because the risk and the benefit are equal. If the owner knows or reasonably should know of a risk, he must exercise reasonable care in safeguarding licensees from the risk. But not required to discover and correct risks (vs. invitees) |
|
|
Term
| Invitee or Business Invitee |
|
Definition
| A person who is at a place by invitation. Someone encouraged by the owner to visit. Usually persons coming onto the land for some purpose the owner wishes to serve. People visiting businesses. |
|
|
Term
| Landowner's Duty of Care toward Invitees |
|
Definition
| Highest duty of care (vs. trespassers or licensees), because risk of injury is greater and benefit is more personal than social. Must discover and correct unknown risks. Landowner required to take extra efforts to render premises reasonably safe for invitees. They wouldn't be on the land to begin with without the invitation. |
|
|
Term
| Express or Implicit Invitation |
|
Definition
| Expressed invitation (business posting its hours on the door); Implied invitation (business leaving doors open during business hours) |
|
|
Term
| Limited Areas of Invitation |
|
Definition
| Areas within the premises that are private and that patrons are specifically discouraged from entering. |
|
|
Term
|
Definition
| Mental anguish. Nonphysical harm that may be compensated for by damages in some types of lawsuits. May be as limited as the immediate mental feelings during an injury or as broad as prolonged grief, shame, humiliation, despair |
|
|
Term
| Negligent Infliction of Emotional Distress |
|
Definition
| 1. Outrageous conduct by the tortfeasor, which (2) the tortfeasor reasonably should have anticipated would product (3) significant and reasonably foreseeable injury to the victim, when (4) the tortfeasor breached his duty of reasonable care to avoid causing such emotional harm to the victim and (5) the victim was a reasonably foreseeable plaintiff. |
|
|
Term
|
Definition
| (Not CA). Some physical impact must accompany the emotional injury. The rule that damages for emotional distress cannot be had in a negligence lawsuit unless there is some physical contact or impact. |
|
|
Term
| Physical Manifestations Rule (NIED) |
|
Definition
| The plaintiff may recover damages if physical symptoms were produced as a result of his mental anguish. |
|
|
Term
| Zone of Danger Rule (NIED) |
|
Definition
| (Not CA) The rule in some states that a plaintiff must be in danger of physical harm, and frightened by the danger, to collect damages for the NIED that results from seeing another person injured by the plaintiff. |
|
|
Term
| Family Relationships Rule (NIED) |
|
Definition
| A bystander may recover damages if he witnesses the tortfeasor injuring one or more of the bystander's relatives. |
|
|
Term
| Sensory Perception Rule (NIED) |
|
Definition
| A bystander may recover damages if he witnesses a tortfeasor injuring another person, so long as the bystander perceives the event directly through his own senses. |
|
|
Term
| California Approach (NIED) |
|
Definition
| Dillon v. Legg. Focus on pure foreseeability of plaintiff/bystander. 1. Bystander's physical proximity to the incident (physical proximity). 2. Bystander's relationship to the injured party (family relationship). 3. Bystander's personal perception of the incident (sensory perception). 4. Physical manifestations arising from ED. |
|
|
Term
|
Definition
| Negligence that cannot be debated due to a law that establishes duty of care that the defendant has violated, thus causing injury to another. Injured party need only prove that the defendant's actions violated the statute. |
|
|
Term
| Plaintiff within Class of Persons Protected by Statute |
|
Definition
| Statute or Ordinance is designed to protects a particular class of persons |
|
|
Term
| 4 Elements of Negligence Per Se |
|
Definition
| (1) Violation of a Negligence Statute by (2) actually and proximately causing injury (3) to someone in the protected class of persons and (4) area covered by the statute. |
|
|
Term
| Open and Obvious Doctrine |
|
Definition
| The open and obvious nature of the hazard itself serves as a warning, meaning no duty of landowner to advise of latent dangers. The owner may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves. |
|
|
