Term
| Negligence (prima facie case) |
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Definition
1. Duty to conform to a specific standard of conduct
2. breach of that duty by defendant
3. actual and proximate cause of injury
4. Damage |
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Term
| Duty: foreseeable plaintiffs |
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Definition
A duty of care is owed only to foreseeable plaintiffs.
Specific situations: rescuers, prenatal injuries, intended beneficiaries of economic transactions. |
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Term
| Standard of care: reasonable person standard |
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Definition
An objective standard
A defendant's mental deficiencies and inexperience are not taken into account. |
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Term
| Standard of care: professionals |
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Definition
A professional or someone with special occupational skills is required to possess the knowledge and skill of a a member of the profession or occupation in good standing in similar communities.
Medical specialists = national standard |
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Term
| Duty to disclose risk of treatment |
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Definition
| A doctor has the duty to disclose the risks of treatment to enable a patient to give informed consent. |
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Term
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Definition
Children are held to the standard of a child of: like age, education, intelligence, and experience.
Subjective test.
Child under 4 = no negligence |
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Term
| Adult activities exception |
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Definition
| Child engaged in adult activities may be required to conform to an adult standard of care. |
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Term
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Definition
| Bailor transfers to the bailee possession of the chattel but not title |
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Term
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Definition
i. sole benefit of bailor = low standard
ii. sole benefit of bailee = higher
iii. mutual benefit = ordinary care
Bailor must inform of known, dangerous defects |
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Term
| Landowner duty: possessor off premises |
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Definition
There is no duty to protect one off the premises from natural conditions on the premises
There is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land.
Urban areas = landowner is liable for falling trees |
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Term
| Landowner duty: unanticipated trespasser |
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Definition
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Term
| Landowner duty: anticipated trespasser |
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Definition
1. Warn or make safe concealed artificial conditions known to landowner involving risk of death or serious bodily harm
ii. reasonable care re: activities |
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Term
| Attractive nuisance doctrine |
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Definition
i. dangerous condition on the land that the owner is or should be aware of
ii. owner knows or should know children frequent area
iii. condition is likely to cause injury b/c children cannot appreciate risk
iv. the expense of remedying the situation is slight compared with the magnitude or risk |
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Term
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Definition
A licensee is one who enters onto the land with the possessor's permission either for her own purpose or for business.
1. Warn of dangerous conditions and 2. exercise reasonable care in the conduct of active operations of property. |
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Term
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Definition
Invitees enter land in connection with business of landowner or if land is open to public.
Warn of dangerous conditions + inspect for dangerous conditions and make safe
Exceed consent = no longer invitee |
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Term
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Definition
The lessee has a general duty to maintain the premises
If the lessor covenants to repair, he is liable for unreasonably dangerous conditions.
Lessor repairs = negligence |
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Term
| Statutory standards of care |
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Definition
1. statute provides for a CRIMINAL penalty
2. Clearly defines standard of conduct
3. Plaintiff is within protected class
4. Designed to prevent type of harm |
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Term
| Statutory standards of care: excuse |
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Definition
| excused where compliance would cause more danger than violation or where compliance would be beyond defendant's control |
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Term
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Definition
Unexcused statutory violation where: i. plaintiff is protected class from 2. protected harm
establishes presumption of duty and breach. |
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Term
| Negligent infliction of emotional distress (prima facie) |
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Definition
1. Plaintiff was within the zone of danger
2. The plaintiff must suffer physical symptoms from distress. |
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Term
| Negligent infliction of emotional distress: bystander |
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Definition
| 1. plaintiff and person injured were closely related 2. plaintiff was present at scene of injury 3. plaintiff personally observed or perceived event |
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Term
| Negligent infliction of emotional distress: special realtionship |
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Definition
| Defendant may be liable for directly causing the plaintiff severe emotional distress that leads to physical symptoms when a duty arises from the relationship between the plaintiff and the defendant, such that the defendant's negligence has great potential to cause emotional distress |
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Term
| Affirmative duties to act |
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Definition
1. Assumption of duty of acting
2. Peril due to defendant's conduct
3. Special relationship between parties
4. Duty to control third parties. |
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Term
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Definition
| Defendant's conduct falls short of that level required by the applicable standard of care |
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Term
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Definition
requires plaintiff to show: i. accident causing injury is a type that would not normally occur unless someone one was negligent and ii. negligence is usually attributable to defendant.
Prima facie case = avoids directed verdict |
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Term
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Definition
| For liability to attach, plaintiff must show both actual cause and proximate cause |
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Term
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Definition
Substantial factor test
Where several causes bring about injury, and any one alone would have been sufficient to cause injury, defendant's conduct is the cause in fact if it was a substantial factor |
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Term
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Definition
| Act or omission is the cause in fact of an injury when the injury would not have occurred but for the act. This test applies where several acts combine to cause the injury. |
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Term
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Definition
Where two acts, only one of which causes injury, but it is unclear which one.
Burden shifts to defendants, and each must show his negligence is not actual cause. |
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Term
| Proximate cause: foreseeability |
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Definition
A defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.
This is the foreseeability test. |
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Term
| Dependent intervening forces |
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Definition
Defendant is liable where his negligence cause a foreseeable harmful response or reaction from dependent intervneing force.
i. subsequent medical malpractice ii. negligence of rescurers iii. efforts to protect person or property iv. injuries caused by reactions v. subsequent diseases or accidents. |
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Term
| independent intervening forces |
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Definition
| i. negligent acts of third persons ii. crimes and intentional torts of third persons iii. acts of god |
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Term
| Eggshell skull plaintiff rule |
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Definition
| Defendant takes his plaintiff as he finds him |
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Term
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Definition
Economic: example medical expenses
non-economic: example pain and suffering |
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Term
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Definition
| Plaintiff may recover punitive damages if defendant's conduct is wanton or willful, reckless, or malicious |
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Term
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Definition
| Damages are not reduced just because plaintiff received benefits from other sources. |
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Term
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Definition
Contributory negligence is negligence on the part of the plaintiff that contributes to her injures
Contributory negligence completely barred plaintiff's right to recovery at common law. |
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Term
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Definition
Plaintiff may be denied recovery if she assumed the risk of any damaged caused by defendnat's act.
Plaintiff must have known of risk and voluntarily proceeded.
Implied: risk average person would clearly appreciate. |
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Term
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Definition
Trier of fact weights plaintiff's negligence and reduces damages accordingly.
Partial: bars plaintiff's recovery if his negligence was more serious than defendnat's
Pure: recovery no matter degree of fault |
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