Negligence

Question 1

Elements of negligence

Answer 1

1. Duty of care;
2. Breach;
3. Actual cause;
4. Proximate cause; and
5. Damages

Question 2

What general duty of care is owed?

Answer 2

D owes a duty of reasonable care (i.e. should act like a reasonably prudent person) to all foreseeable plaintiffs in the zone of harm

Question 3

Who are foreseeable plaintiffs?

Answer 3

Persons who are in the zone of danger (area where the person is reasonably at risk of suffering physical harm from D’s conduct)

Question 4

What are the different standards of care?

Answer 4

1. Reasonable Prudent Person standard (RPP);
2. Standards imposed on children;
3. Standard defined by statute;
4. Standard for professionals;
5. Standards for landowners;
6. Standard for common carriers & innkeepers; and
7. Standard defined by industry custom

Question 5

What is the reasonably prudent person standard of care?

Answer 5

D must act as a reasonably prudent person would under the same circumstances with the same knowledge and capacity as an average person

⭐️ Objective standard

Question 6

What is the standard of care for children?

Answer 6

Child must act as a child of similar age, experience, and intelligence would.

⭐️ More subjective than RPP standard.

⚠️ However, if the child is engaged in a high-risk activity that is usually undertaken by adults, they will be held to the same standard of care as an adult

Question 7

When are children held to the adult standard of care (RPP)?

Answer 7

When engaging in inherently dangerous adult activities (e.g. driving a car or motorcycle)

Question 8

What is the standard of care for professionals?

Answer 8

Must act the same as a professional with the same expertise & experience who is in good standing in a similar community

Question 9

What is the standard of care for doctors?

Answer 9

Must act the same as a doctor in good standing would.

Some jurisdictions: compared to a doctor in good standing in the same geographic area

Some jurisdictions: compared to a doctor in good standing nationally

Question 10

What is the standard of care for specialists?

Answer 10

National standard of care for that speciality

Question 11

Do doctors have a duty to explain medical risks?

Answer 11

Yes, unless:

1. Commonly known risk;
2. Patient refuses;
3. Patient is incapacitated or incompetent; or
4. Disclosure would harm/injure patient

Question 12

Is there an affirmative duty to intervene, rescue, or aid another?

Answer 12

No, unless:

1. D has a special relationship with P;
2. D creates a need for rescue; or
3. D undertakes the rescue and P relies on the rescue attempt

Question 13

Define

Good Samaritan Rule

Answer 13

D who rescues another will not be liable for negligent harm, only for reckless or intentional harm.

Question 14

What is the duty of care for common carriers?

Answer 14

Highest duty of care; liable for even the slightest negligence

Question 15

What is the duty of care for innkeepers?

Answer 15

Third restatement approach: utmost standard of care (same as the common carrier standard)

Majority approach: only responsible for ordinary negligence

Question 16

Define

invitee

Answer 16

Either:

1. A business customer: someone invited on the land to confer an economic benefit on the land possessor; or
2. A public invitee: someone invited on land that is open to the public

Question 17

What duty is owed to invitees?

Answer 17

Property owner must:

1. Inspect area where invitees have access;
2. For non-obvious, unknown dangers;
3. Warn the invitee of the dangers; and
4. Protect them from the dangers

⚠️ Note: Duty is non-delegable

Question 18

What is non-delegable duty?

Answer 18

Duty that does not absolve D of liability when contracted out to a third party (i.e. D is still ultimately liable)

Question 19

Define

licensee

Answer 19

Person who enters onto D’s land with D’s express or implied permission (e.g. friends, social guests, emergency personnel)

Question 20

What duty is owed to licensees?

Answer 20

Property owner must:

1. Exercise reasonable care on the property;
2. Warn or correct concealed dangers;
3. That are known or should be known;
4. In areas where P has access as a licensee

⚠️ Note: No duty to inspect for dangers

Question 21

What duty does a landlord owe to its tenants?

Answer 21

1. Reasonably inspect and keep safe all common areas; and
2. Warn tenants of hidden dangers

Question 22

Is D’s duty to licensees non-delegable?

Answer 22

Yes

Question 23

What duty is owed to foreseeable trespassers?

Answer 23

Property owner must correct or warn of dangerous, artifical conditions on land that could cause death or serious bodily harm

⚠️ There is no duty to warn about natural conditions

Question 24

What duty is owed to unforeseeable trespassers?

Answer 24

None

Question 25

What is the attractive nuisance doctrine?

Answer 25

D is liable for child trespassers if:

1. D knows of a dangerous, artificial condition on the property;
2. That poses a risk of death or great bodily harm to children;
3. In a place that D knows or should know children are present;
4. Children are too young to appreciate the danger;
5. The risk of harm to children outweighs the burden of fixing the condition; and
6. D failed to remedy the dangerous condition

Question 26

What is a defense to an attractive nuisance claim?

Answer 26

D posted a very specific warning about the dangers; cannot be a general warning.

Question 27

Define

negligence per se

Answer 27

Negligence that arises from violating a law that was designed protect a specific class of persons from a specific harm.

P doesn’t need to show that D was negligent, only that D didn’t follow the statute.

(Ex. speeding)

Question 28

Elements for negligence per se

Answer 28

1. Statute imposed duty;
2. D did not perform duty;
3. P is a member of a class that the statute was designed to protect; and
4. Injury caused by D is the type of injury that the statute was designed to protect against

Question 29

What are the defenses to negligence per se?

Answer 29

1. D’s non-compliance was reasonable given the circumstances; or
2. Full compliance was impossible

Question 30

When has a breach of duty occurred?

Answer 30

When D fails to follow the appropriate standard of care

Question 31

What is res ipsa loquitur?

Answer 31

Arises when P does not have direct evidence of D’s negligence, but her injuries suggest D was negligent

Question 32

Elements of res ipsa loquitur

Answer 32

1. Injury would not occur without negligence;
2. D had exclusive control over instrumentality that caused the injury; and
3. P did not contribute to the injury

Question 33

If D contracts out a non-delegable duty to a third party, are they still considered to be in exclusive control of the premises for the purposes of res ipsa?

Answer 33

Yes, if the duty is non-delegable, D remains in exclusive control

Question 34

What is actual cause (“cause-in-fact”) and what are the 3 tests to determine its existence?

Answer 34

Factual cause of P’s injuries.

Tests:

1. “But-for;”
2. Substantial factor; and
3. Burden-shifting test

Question 35

What is the “but-for” test for actual cause?

Answer 35

Actual cause exists when, “but for” D’s negligence, P would not have been harmed

Question 36

What is the substantial factor test for actual cause?

Answer 36

Actual cause exists when D’s negligence was a substantial factor in bringing about P’s injury

⭐️ Used when there are multiple causes or tortfeasers that could have caused P’s injuries

Question 37

What is the burden-shifting test for actual cause? (also called alternative liability)

Answer 37

If one or more D’s simultaneously engaged in negligent conduct that could have caused P’s injuries, the court will ask each D to prove their actions were not the actual cause of P’s injuries.

If D cannot prove that the other D was responsible for the injury, both will be held jointly & severally liable.

See Summers v. Tice

Question 38

What is proximate cause?

Answer 38

Legal limitation on actual cause. Asks: “Is it legally fair to impose liability on D?”

Holds that P’s injuries must be foreseeable and a direct consequence of D’s actions (i.e. no intervening or superceding causes)

Question 39

Define

“eggshell skull” rule

Answer 39

D is responsible for the full extent of harm he caused, even if extent of damages was not foreseeable.

Question 40

Define

intervening cause

Answer 40

Event that happens after D’s conduct that contributes to P’s injuries (e.g. medical malpractice).

Can be either foreseeable or unforeseeable. If unforeseeable, D is relieved of liability.

Question 41

Define

superseding cause

Answer 41

Unforeseeable, freakish, or bizarre intervening event that breaks the chain of causation between the initial wrongful act and the ultimate injury.

Negates proximate cause, thereby relieving D of any liability.

Question 42

Examples of foreseeable & unforeseeable intevening events

Answer 42

Foreseeable (D still liable)

• Medical malpractice;
• Rescuer negligence;
• General negligent acts/accidents by third parties

Unforeseeable (D not liable)

• Acts of God;
• Gross or bizarre medical malpractice (much more than ordinary negligent malpractice);
• Intentional tortious or criminal acts by third parties

⚠️ Note: Defendant can be liable if his conduct set the stage for an intentional criminal act (left someone’s car unlocked and it was broken into, etc.), and can also be held liable if the risk of harm from an Act of God was increased by his negligence.

Question 43

What type of harm does P need to prove to recover on a negligence claim?

Answer 43

Actual damage; i.e. actual harm to person or property

Nominal damages & damages for solely for economic harm are not sufficient

Question 44

Define

compensatory damages

Answer 44

Damages designed to return P to her pre-injury position; i.e. make P whole

Question 45

What types of damages can P recover?

Answer 45

1. Medical expenses (past & future);
2. Pain and suffering (past & future);
3. Lost income/earnings (past & future);
4. Property damages (reasonable value of repair or fair market value at time of injury if irreparable)

Question 46

Define

collateral source rule

Answer 46

The fact that P is getting compensated from a third party source (insurance, union contract, etc.) does not alleviate D’s obligation to pay, nor is such evidence admissible at trial.

Question 47

Is P entitled to punitive damages for ordinary negligence?

Answer 47

No, only if D acted recklessly, maliciously, willfully

Question 48

Is D’s net worth relevant when calculating damage awards?

Answer 48

Only when determining punitive damages

Question 49

Does P have a duty to mitigate?

Answer 49

Yes, P must take reasonable steps to mitigate damages.

Contributory negligence jurisdiction: failure to mitigate bars recovery for harm caused by aggravation of injury

Comparative negligence jurisdiction: May reduce recovery but does not bar it

Question 50

What are the defenses to negligence?

Answer 50

1. Contributory Negligence;
2. Comparative Fault; and
3. Assumption of Risk

⚠️ Note: Assume comparative negligence applies unless otherwise stated by MBE

Question 51

Define

contributory negligence

Answer 51

P’s conduct fell below the relevant standard of care and contributed to P’s injury

⭐️ Complete bar to recovery

Question 52

What is the “last clear chance” rule?

Answer 52

P can defend contributory negligence claim by alleging that D had last clear chance to avoid injuring P, but failed to do so

⚠️ Note: Not allowed in comparative fault jurisdictions

Question 53

Define

comparative fault

Answer 53

Apportions fault between P and D and reduces P’s damages proportionally.

Two types:

1. Pure comparative negligence
2. Modified comparative negligence

Question 54

Define

pure comparative fault jurisdiction

Answer 54

Reduces P’s recovery in proportion to P’s fault

E.g. If P is 40% at fault, recovery will be reduced by 40%

Question 55

Define

modified comparative fault jurisdiction

Answer 55

P cannot be more than 50% at fault for the resulting injury or else recovery will be barred.

If P is less than 50% at fault, recovery is reduced by percentage P was at fault (same as pure comparative negligence)

Question 56

What is the default jurisdiction on the MBE, contributory negligence or comparative fault?

Answer 56

Pure comparative fault in which joint and several liability applies

Question 57

What must D show to prevail on an assumption of risk defense?

Answer 57

1. P knew or should have known the risk of the activity; and
2. P voluntarily participated in the activity anyways

Can be express (written waivers) or implied.

Question 58

Is assumption of risk a defense in a comparative negligence jurisdiction?

Answer 58

No. Assumption of risk can reduce the amount P would recover, but will not be a complete bar to recovery (unlike in contributory-negligence jurisdictions)

Question 59

If a state has traditional joint and several liability rules, allows contribution, and uses a pure comparative negligence system, how do you calculate damages?

Answer 59

Joint and several liability: you can try to get 100% from each of the D’s, however, comparative negligence means you have to reduce amount by whatever percentage each D was at fault.

Ex. For example, if there are 2 defendants with a judgment of 10,000 against them, the plaintiff could try to get 10,000 from each of them. However, if defendant 1 has 25% responsbility and defendant 2 has 75%, you can only collect $2,500 from D1 and $7,500 from D2.

Question 60

Elements for negligent infliction of emotional distress (NIED)

Answer 60

1. D’s negligence created foreseeable risk of harm to P;
2. P was in the zone of danger; and
3. P suffered emotional distress as a result

Question 61

What type of symptoms are necessary to prove emotional distress (but not always)?

Answer 61

Physical symptoms (e.g. heart attack) (not required in some jurisdictions)

Question 62

Elements for bystander negligent infliction of emotional distress (NIED)

Answer 62

1. P is closely related to V;
2. P was present at the scene of the injury;
3. P witnessed or perceived the injury causing event; and
4. P suffered severe emotional distress as a result

Question 63

Elements for emotional distress claim for the mishandling a dead body

Answer 63

1. There has been mishandling of a dead body;
2. Person affected had a special relationship to the deceased, and
3. Emotional distress was severe

Question 64

Define

negligent entrustment

Answer 64

D is liable for negligent entrustment if:

1. P has a reputation or record that shows propensity to be dangerous when in possession of such instrumentality;
2. D knew or should have known P had this dangerous propensity;
3. D provided P with the dangerous instrumentality, and
4. P injures third party with dangerous instrumentality