Term
| Explain why the location and interest analysis rules (lex loci and rule of significant contacts) might result in the application of different laws to a given test case. |
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Definition
| This rule often applies in cases involving parties from different states with conflicting laws. A court using lex loci would apply the law of the state in which the wrong occurred. Depending on the circumstances, a court using interest analysis will select the law of the state having a greater interest in protecting its citizens by applying its law to each specific case |
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Term
| What are the four elements of negligence? |
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Definition
*The defendant's legal duty of care to the plaintiff *The defendant's breach of duty *Proximate cause *Plaintiff's actual loss or damage |
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Term
| Describe the ways in which a legal duty can arise. |
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Definition
| Legal duty arises when parties are in such a relationship that the law imposes on one part a responsibility for the exercise of care toward the other. |
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Term
Explain the standard of care applicable to the following persons: a) people with disabilities b) professionals |
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Definition
a) The standard of care applicable to persons with disabilities is based on how a reasonable person with a disability would act under the circumstances b) The standard of care applicable to professionals is based on the skill and knowledge of average members of that profession in the same community when applied with reasonable care. |
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Term
| What important legal consequences depend on the distinction between negligence and reckless misconduct? |
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Definition
| If a tort involves reckless misconduct, the defense that the plaintiff was also negligent might not be sufficient. Additionally, courts can award punitive damages; they can impose liability on a landowner for injury to a trespasser. Finally, automobile guest statutes do not permit recovery for ordinary negligence, but do for reckless misconduct. |
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Term
| Explain the rules for determining proximate clause. |
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Definition
| The rules for determining proximate cause are as follows: "But for" rule Substantial factor rule Proof of defendant's responsibility Foreseeability rule |
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Term
| Explain under what circumstances the doctrine of res ipsa loquitur applies. |
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Definition
| The doctrine of res ipsa loquitur applies in these circumstances: When the probability exists that the defendant was negiligent When the defendant, as the party who had exclusive control of, and who therefore had superior knowledge of, the causative circumstances, has the duty to explain the event in question. |
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Term
| Describe the situations in which imputed negligence can arise. |
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Definition
| Imputed negligence can arise in situations in which passengers injured in auto accidents were assumed to be aware of the driver's skills, or lack of them, and were therefore considered negligent and unable to recover damages. In a lawsuit in which one spouse sues another party for personal injury, and the other spouse is found to have contributed to the first spouse's injury through negligence, that negligence is imputed to the injured spouse, who is then barred from recovery of damages. |
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Term
| Explain whether, when a mother gives the keys of her automobile to her fifteen-year-old son, either or both of the following apply: negligent entrustment or negligent supervision. |
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Definition
| When a mother gives the keys of her automobile to her fifteen-year-old son, there are grounds for both negligent entrustment and negligent supervision if the son injures a person or damages property while driving the automobile. |
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Term
| What is the effect, at common law, of a finding of contributory negligence on the plaintiff's part? |
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Definition
| At common law, a finding of contributory negligence on the plaintiff's part bars the plaintiff from recovering in a lawsuit. |
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Term
| What criticism has been made of pure comparative negligence rules? |
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Definition
| The pure comparative negligence rule is criticized because it does not base recovery on apportionment of fault but on the relative amount of loss; thus a party whose negligence was a major factor in the incident can recover damages from a party who was less at fault. |
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Term
| What is the purpose of the doctrine of last clear chance? |
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Definition
| The purpose of the doctrine of last clear chance is to alleviate the harsh results of contributory negligence. |
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Term
| What two circumstances establish the assumption of risk defense? |
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Definition
| The two circumstances that establish assumption of risk are: - proof that the plaintiff had full knowledge of the risk, and
- that, having an opportunity to elect to avoid it, voluntarily chose to incur it
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Term
| What types of activities performed by a government are not covered by the doctrine of sovereign immunity? |
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Definition
| Government actions not covered by sovereign immunity are those that can be performed by entities other than governments. |
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Term
| What is the current status of the defense of inter-spousal immunity? |
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Definition
| All states have abolished inter-spousal immunity in whole or in part. |
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Term
| Under what circumstances might a person be liable for the torts of an independent contractor? |
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Definition
| A person can be liable for an independent contractor's torts if the person negligently employs that contractor, or delegates performance of nondelegable duties to the contractor, or employs an independent contractor to do work that is inherently dangerous to others |
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Term
| Under what circumstances is an exculpatory agreement valid? |
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Definition
| An exculpatory agreement is valid under any of the following conditions: The exculpatory clause is not adverse to a public interest and not against public policy. The party excused from liability is not under a duty to perform. The contract does not grow out of the parties' unequal bargaining power and is not otherwise unconscionable. |
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Term
| Explain what constitutes an attractive nuisance. |
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Definition
| An attractive nuisance is something artificial on the land that is certain to attract children. |
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Term
| Distinguish between the duties a landowner owes to a licensee and those owed to an invitee. |
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Definition
| A landowner owes an adult licensee the affirmative duty to refrain from willfully or wantonly injuring the person or acting in a way that would increase that person's peril. For invitees, the landowner owes a duty to exercise reasonable care to keep the premises reasonably safe and to warn of concealed dangerous conditions. |
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