Term
| What are the elements necessary in a negligence case? |
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Definition
Duty owed
Breach of that duty
Harm done because of that Breach
Causation linked between the breach and harm done |
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Term
| What is the definition of a duty |
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Definition
| A legal obligation to act reasonably in relation to others |
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Term
| What is the standard of care? |
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Definition
| to act as an Ordinary, Reasonable, Prudent, Person. (ORPP) |
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Term
| Are professionals held to a higher standard of care? Why? |
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Definition
| Yes, because of their expertise/training/knowledge over that of a reasonable person. Held to an ORPsurgeon, not just an ORPP. |
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Term
| To whome is the duty owed? What are some possible approaches? |
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Definition
Duty is owed to the foreseeable plaintiff
Duty is owed based on the relationship of the parties |
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Term
| What zone did the Palsgraf case create in negligence cases? |
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Definition
| Zone of Danger aka - "Orbit of danger" |
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Term
| Under the Objective Standard, is a reasonable person expected to know dangers associated with wild animals? |
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Definition
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Term
| What characteristics are considered and not considered in a reasonable person standard? |
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Definition
Physical abilities and disabilities are considered, they are held to different standard based on these characteristics.
Mental abilities and disabilities are not considered in the majority of courts; this is to protect the MORE innocent party when two party's are both innocent. |
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Term
| Can a child be held to an adult standard of reasonableness? Why or why not? |
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Definition
| Yes, if they engage in potentially dangerous activities that are normally reserved for adults |
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Term
| Will an inexperienced surgeon be held to a lower standard of care than that of an experienced surgeon? |
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Definition
| No, a surgeon with 1 year experience is held to the same standard as that of a surgeon with 10 years experience. They both need to be able to do the job given to them. |
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Term
| What are the elements necessary for Negligence Per Se? |
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Definition
A violated statute applicablee to the facts of the case
(that alone constitutes a duty and a breach of said duty)
Harm done to Plaintiff
and a causation between the violation and the injury suffered |
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Term
| A car crashes because the conditions of the road did not permit the normal speed limit of 65 mph and causes injury to plaintiff. What about the statute that says speed limit, "conditions permitting" does the plaintiff have to prove? |
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Definition
That the plaintiff was a member of the class of persons whom the statute was intended to protect
That the statute was designed to protect against the kind of harm inflicted. |
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Term
Complilance with a statute proves the defendant was not negligent.
True or False? |
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Definition
| False, the finder of fact is always free to conclude that a reasonable person would have taken precautions beyond those mandated by statute. (note, that does mean they are not Negligent per se due to compliance with a statute) |
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Term
| What are common defenses for negligence? |
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Definition
| Contributory Negligence and Assumption of risk |
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Term
| What does Res Ipsa Loquitor mean and what's a reason for it's use? |
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Definition
"The thing speaks for itself"
It is easier to prove than negligence, a shortcut so to speak |
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Term
| What are the elements of Res Ipsa Loquitor? |
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Definition
The instrament that caused the injury was in exclusive control by the D
The injury suffered by P is not one ordinarily occuring
P did not contribute to their injuries
Causation
Harm |
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Term
| In the common law meaning, what is the duty owed to others on your land, from highest to lowest? |
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Definition
Invitees
Licensees
Trespassers |
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Term
| What is the definition of an Invitee on your property and what is their duty owed to them? |
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Definition
They are there for a business purpose, you are getting some benefit for them being there.
They are to be warned of unknown dangers, you have a duty to inspect |
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Term
| What is the definition of a Licensee on your property and what is their duty owed to them? |
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Definition
This is a social guest or possibly a unsolicited door-to-door salesman.
You have a duty to warn them of known dangerous conditions |
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Term
| What is the duty of care owed to a Trespasser? |
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Definition
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Term
| Can you set a spring-gun trap behind your front door to get rid of trespassers? |
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Definition
| No, as a general rule, you can not set a trap. |
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Term
| A next door neighbor sees your house is on fire and knows you and your friend are inside. He runs in and saves you and your friend but both he and your friend suffer serious burns. Are you held liable for your next door neighbor trespassing into your home? |
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Definition
| Yes! Under the Rescue doctrine: "The wrong that imperils life is a wrong to the imperiled victim; it is wrong also to his rescuer” |
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Term
| A random child enters your property to use your pool and drowns. Are you liable? What if you have a fence with a closed gate? What if the gate has a lock? |
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Definition
| Yes, you are liable for the child that uses your pool and if youo just have a fence! The child could just open the gate. If the child has to jump the fence because the gate is locked, then no, you are not liable. |
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Term
| What is an attractive nusiance? |
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Definition
| Relates to situations that would lure children to the property. |
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Term
| Your yard is used all the time by people to cross through to get to the park. What level of care do you give these trespassers? |
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Definition
| Reasonable care. Because you knew of the trespassers existence and continued to tolerate them it constitutes as implied permission to use the land. |
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Term
| Does the tenant owe a duty to the other tenants of a building to maintain the common parking lot? |
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Definition
| No, that is the duty of the landlord for all common areas |
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Term
| You are coming upon the end of your lease, you agree to certain times with the Landlord to show the house to the public and potential renters. The floor near the kitchen is slightly rotted now. In the process of showing the house to the public 4 people fall through the floor and are injured. Whose duty was it to inspect the property for and know of dangers? |
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Definition
| The Landlords. Under their duties, they have a duty to inspect the property if it is being held open to the public. |
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Term
| A hotel has 5,000 guests the night of a snow storm in New York City. One of those guests slips and falls on the snow during the storm. Does the hotel have liability for not clearing the snow during the storm? |
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Definition
| Yes, because they are a common carrier, they are held to a higher standard of care. |
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Term
| What is Respondeat Superior? |
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Definition
| An employer is liable for the negligent acts of its employees if the employees are acting within the scope of their employment. |
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Term
| A furniture delivery man is told to deliver your furniture today at 4pm. He makes all of his other delieveries on time earlier that day but decides to visit his grandmother at her retirement community and is forced to eat fruitcake or else. Because he was 5 hours late delivering your furniture you lost a night of work because you couldn't receive it any other day that month. Would his employer be liable for this? |
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Definition
| No, because he was not within the scope of his employement by being force fed fruitcake all night by his grandmother. His employere is not responsible for his lateness, the employee is for his FROLIC AND DETOUR |
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Term
| What is the good smaritan statute? |
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Definition
| Anyone providing emergency medical assistance is not liable for damages as long as care is provided in good faith and does not constitute gross negligence. |
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Term
| What is Strict Liability? |
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Definition
| Liability without fault. Absolute duty to make safe. |
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Term
| What are the cause of actions on strict liability? |
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Definition
in situations involving abnormally dangerous activities.
Injuries caused by wild or dangerous animals
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Term
| What are the elements for Strict Liability? |
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Definition
Absolute duty to make safe
Breach
Harm
Causation |
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Term
| What does domesticated mean? |
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Definition
| By custom, devoted to the service of mankind |
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Term
| When is Strict Liablity used over animals? |
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Definition
| When they are wild by nature or the owner knows or should have known that the animal has vicious propensities. |
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Term
| How can you determine if an activity is abnormally dangerous? |
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Definition
| risk of serious harm, risk cannot be eliminated by due care, High degree of risk |
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