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What is assumption of risk
The Assumption of the Risk Doctrine proceeds on the theory that the plaintiff has expressly or impliedly consented to the dangers arising out of the defendant's conduct. Such consent may be created by an agreement between the parties or it may arise by way of the conduct of the plaintiff in voluntarily subjecting himself/herself to a known and appreciated risk. Assumption of the risk is a complete bar to recovery when established in a negligence action.
What are the elements of Negligence?
The elements of negligence are duty, breach, actual and proximate cause, and damages.
What is proximate cause?
Proximate Cause is an act which in a natural and continuous sequence of events, unbroken by unforeseeable, independent, intervening acts, causes injury to the plaintiff, without which the injury would not have occurred.
What is breach of duty?
A breach of duty occurs when the defendant falls below the standard of care required by the duty in question.
What is the duty owed to a trespasser?
The land occupier generally owes no duty of care to the trespasser unless the trespasser trapped or in peril or a child.
What is vicarious liability?
Vicarious liability arises out of employment relationships, joint enterprises or vehicle ownership situations (where some person, other than the owner, is driving the vehicle with the owner's consent). Vicarious liability relates to a situation where the defendant is not charged with personal fault or wrongdoing but, because of some relationship between the defendant and the actual tortfeasor or the other special circumstances, the defendant is made liable anyway. If a defendant is held liable on a vicarious liability theory, that defendant has the right for indemnification for the purpose of being reimbursed for the amount of the actual liability.
What does "res ipsa loquitor" mean?
"The thing speaks for itself"
When is "but for" causation required in an action of negligence?
Every time
What is Res Ipsa Loquitor?
A doctrine that is used by P's who cannot figure out what D did wrong because there is an information vacuum. Procedural effect: Enough to avoid a directed verdict for D.
Jury must find that:
(1) The accident that occurred is NORMALLY associated with negligence. P argues the probabilities; appeal to common sense.
(2) The accident would normally be due to accidents in someone in D's position. P must have evidence that D had exclusive control over the object.
(Note: Usually not applicable in multiple defendant cases, except for where there's a surgical team.)
To whom is duty owed?
Foreseeable victims only. Unforeseeable victims always lose. Think Palsgraf. However, the rescuer exception allows remote victims to succeed.
Define strict liability
Strict liability means liability without fault. It is imposed against a defendant even though the defendant has done nothing intentionally wrong and has not acted unreasonably under the circumstances. Such liability is imposed, traditionally, for the keeping of dangerous animals, and the carrying on of abnormally dangerous activities.
What is negligence per se?
Negligence per se involves the use of the defendant's unexcused violation of a statute or an ordinance to prove the elements of duty and breach of duty, if it can be established that the statute in question was designed to protect this class of plaintiffs from this type of injury.
What is the "substantial factor test"?
The "substantial factor" test is also used for purposes of establishing actual cause. The defendant is said to be an actual cause of the plaintiff's injury if the defendant is a substantial factor in bringing the injury about. This means that the defendant's negligent act must contribute to the happening of the plaintiff's injury to more than a trivial degree. This test should be used in addition to the "but for" test because sometimes it is more workable, especially when involved with questions related to the combined effect of more than one fire, explosion or similar condition. "But for" the one fire or explosion the plaintiff's property might have burned anyway by reason of the other fire or explosion. However, using the substantial factor test it is clear that the negligence of each fire or explosion has contributed to the plaintiff's damage to more than a trivial degree. Therefore, since the damages are not capable of being apportioned, both parties can be held liable for the entire amount of the damage.
What is BPL?
Breached Duty
What level of care does Defendant owe?
The level of care exercised by a reasonably prudent person, acting under similar circumstances. This is an objective standard of what a super responsible person would do that everyone held to, even those with lesser mental capabilities.
Basic Elements:
(1) Duty
(2) Breach
(3) Causation
(5) Proximate cause
(4) Damages
(Exam tip: Outline each element for any and every negligence essay. Must deal with all four, in order, in separate paragraphs.)
What is contributory negligence?
Contributory negligence relates to the plaintiff's failure to exercise due care in his or her own protection which is a contributing factor to the happening of the plaintiff's injury. In some jurisdictions, the plaintiff's contributory negligence will result in a complete bar to recovery from the defendant without regard to the relative fault on the part of the defendant.
When is there a duty to act affirmatively?
There is no duty to act affirmatively, meaning there is no duty to take a course of action.
No duty to rescue.
**Exam tip: No matter how egregious the facts are, there is no duty to rescue. There is no liability.
Difference between IIED and NIED
Turns on whether D acted on purpose (IIED) or carelessly (NIED).
What is comparative negligence?
Comparative negligence relates to the extent that the plaintiff's fault has contributed to the plaintiff's injury and acts to diminish the plaintiff's recovery in situations where the plaintiff is shown to have been in violation of a duty of reasonable care to the plaintiff's own person. Most states have adopted the comparative negligence system as a replacement for the contributory negligence system. Therefore, fault on the part of the plaintiff does not operate as a complete bar to recovery in every case in those jurisdictions that apply the comparative negligence theory.
What are the exceptions to the duty to act?
(1) Pre-existing relationship: If D has a pre-existing (formal legal) relationship with P, then D has a duty of care.
(Examples: Common carrier-passenger; Hotel-guest)
(2) If D puts P in (any) peril, the D owes a duty a care.
Duty of care, NOT duty to rescue. No one has to risk their life. (i.e. Call the fire department)