Term
| What are the basic elements of a negligence cause of action? |
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Definition
| Duty, Breach of Duty, Cause in fact (did breach lead to duty?) Proximate Cause, [Defenses] |
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Term
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Definition
| If Burden (cost) of prevention is less than probability of injury x cost of injury, then D should pay higher cost of injury. |
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Term
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Definition
| If B is GREATER than PL then Defendant should pay nothing. (Forcing D to pay lower cost of PL will not encourage safety.) |
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Term
| What is utmost standard of care? |
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Definition
| Higher than reasonable standard of care; usually enforced upon common carriers. |
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Term
When considering what a reasonable person would do under circumstances;
Do jury's consider Mental Infirmities? |
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Definition
| Generally NO, some make an exception for manifest insanity or sudden onset of mental illness. |
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Term
When considering what a reasonable person would do under circumstances;
Do jury's consider voluntary drunkenness? |
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Definition
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Term
When considering what a reasonable person would do under circumstances;
Do jury's consider training, knowledge, or experience? |
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Definition
| Yes, all of the above. Generally people with training knowledge or experience are held to a higher standard. |
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Term
When considering what a reasonable person would do under circumstances;
Do jury's consider Physical Infirmities? |
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Definition
YES, the jury will ask, "How would a reasonable person with this physical infirmity have acted under the circumstances?
Also. the jury should consider if person was negligent to get themselves in that situation. |
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Term
| What standard of care are children held to? |
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Definition
The standard of a person of that child's age, intelligence, and experience.
Very young children not held to be capable of negligence. More like force of nature. |
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Term
| When can Children be held to an adult standard? |
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Definition
| If they are engaged in adult activities (or activities***) that require a certain skill set or have an inherent level of dangerousness.*** |
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Term
| Can parents be held liable for the acts of their children? |
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Definition
| Yes, but usually only if the parent's were negligent. And sometimes when the act was malicious. (usually with a $$ cap.) |
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Term
| Does custom establish a standard of care? |
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Definition
| No, (except maybe sometimes in malpractice.) |
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Term
| How can a custom be a factor in assessing whether a behavior was reasonable? |
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Definition
| 1. A custom can show that behavior was Feasible. 2.If a behavior is customary it can show that defendant probably knew about that behavior. |
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Term
| When is a defendant negligent for violating statute? |
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Definition
1. if the statute is designed to protect against the type of accident that the actor's conduct causes.
2. And if the person affected is in the class of people that the statute was designed to protect. |
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Term
| What are the three ways jurisdictions treat a violation of statute? |
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Definition
| 1. Negligence per se. 2. a Prima Facie Case 3. Circumstantial evidence. |
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Term
| What does "negligence per se" mean? |
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Definition
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Term
| What are the defendant's arguments against negligence per se? |
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Definition
1. statute was not intended to protect against the D's specific action./D was not in group intended to be protected by this.
2. incident would have happened regardless of statutory violation.
3. Present an excuse |
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Term
| What are the 4 excuses for negligence per se in violation of statute ? |
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Definition
| 1.Violation is reasonable. 2. Completion would have been impossible. 3. compliance would have been more dangerous than not complying. 4. Actor does not know or should not know about the facts that make the statute applicable or where the statute is sufficiently confusing. |
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Term
| What is a constructive notice? |
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Definition
| A presumption of notice which is so strong that the law does not permit it to be controverted. |
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Term
| When is a defendant on constructive notice? |
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Definition
1. Defect must be visible and apparent.
2. It must exist for a significant length of time. |
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Term
| What are the conditions for applying Res Ipsa Loquitor? |
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Definition
Conditions for applying.
1. Plaintiff shows that the accident is not one that ordinarily would have occurred without some negligence by the defendant. (some apply when evidence is sufficient to exclude other causes)
2. Defendant is in a better position to provide evidence
(some jurisdictions apply when D has better access to evidence & others when neither D nor P have access) |
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Term
| When in an accident when does one have a duty to render aid? |
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Definition
Traditionally- if one NEGLIGENTLY causes an accident.
Modernly- If one puts someone in peril and there is no other help.
Special Relationships.
Beginning to reder aid |
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Term
| What relationships establish a duty to render aid? |
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Definition
1. Common Carriers
2. Inn Keepers
3. Businesses with customers
4. People who have taken custody of others, Teachers, Prison guards, Mental hospitals.
5. A Promise can create a duty to act.
6. Sometimes companions in a dangerous undertaking have an implied promise to render aid. |
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Term
| What special relationships impose a duty to a third party? |
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Definition
1. A party that has undertaken duty to protect 3rd party.
2. A person that has taken charge of a dangerous person owes duty to 3rd parties. (prison, psych ward, etc)
3. PArents owe duty to protect 3rd parties from their children.
4. Employers sometimes have a duty to control employee's
5. Sometimes social host. and negligent entrustment are relevant( but that's a card for another day....) |
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Term
| Do dram shop acts apply to social hosts? |
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Definition
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Term
| When can a person be liable for negligently entrusting something to a third party? |
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Definition
When that thing is;
1. Inherently dangerous
2. and the injuries result from that inherent dangerousness
Also consider
person's capabilities. |
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Term
| What duties are owed to a Trespasser? |
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Definition
| Most jurisdictions No duty. Some say little duty. |
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Term
| What duties are owed to a known trespasser? |
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Definition
| LO/O has duty to warn of conditions that are dangerous, non-evident, and artificle. has to be generally reasonable in his or her activities if he knows or should know that there are (or likely are) trespassers. |
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Term
| What factors must be present for children trespassers to recover |
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Definition
1. child harmed by artificial condition
2. LO must know or have reason to know that children re likely to trespass.
3. Condition must pose an unreasonable risk of danger.
4. Danger mud be such that children could not reasonably appreciate the risk.
5. Utility of maintaining that condition must be slight in comparison to the risk.
6. LO must have failed to exercise reasonable care in eliminating that risk.
ALSO, With children warning may not be enough may have to correct danger. |
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Term
| When is a visitor a licensee? |
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Definition
| If the visitor is not there for the material benefit of the LO. (and isn't a trespasser.) |
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Term
| What duty does a LO have toward a licensee? |
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Definition
| Warn of dangerous activities the LO knows about. (no duty to repair or inspect) |
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Term
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Definition
1. visitor there for the POTENTIAL material benefit of the land owner.
2. persons visiting for free service that is open to general public (museum) |
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Term
| What duties does a LO owe to an Invitee? |
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Definition
1. Preform reasonable inspections for dangers
2. Warn invites of unobvious dangers. (unless obvious nature doesn't make it safe)
3. Warning MAY not be enough, may be duty to repair.
4. Sometimes Criminal activity. |
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Term
| What are the 4 rules for protecting invitee's from crime? |
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Definition
1. Specific harm rule- LO has duty to protect against immediate threat of violence.
2. Prior similar incidents- LO has duty to protect if prior crime near or on the property
3. Totality of circumstances- if previous crime in area, then duty to protect. (most popular)
4. Balancing test- balances foreseeability of harm with burden of protecting. (puts decision in hands of judge) |
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