Negligence, Per Se, Res Ipsa
Explain the Duty of Care and to whom it is owed
1. Reasonable, prudent person under the circumstances
2. Foreseeable victims inside the Zone of Danger
This defense requires that:
1. Plaintiff is negligent
2. Plaintiff will recover regardless of amount of fault
3. The 'modern' version doesn't allow plaintiff to recover if more than 50% at fault
Comparative Negligence
My airfryer won't work! It's been acting like this since I brought it from the store, and I had a promise for performance! I'm bringing a suit for _________
Product Liability.
Contrast Private v. Public Nuisance
1. Unreasonable interference w/ use/enjoyment of another's land
2. Unreasonable interference against public at large, brought by a gov't official, and w/ a bop of special damages
This judge had a "handful" of law to discuss, including developing the balancing test of the duty of care of negligence, when he reviewed a case involving sinking boats and barges.
Learned Hand.
Define Actual and Proximate Cause
1. "But for" the defendants actions, the injury to plaintiff wouldn't have happened.
2. Foreseeable victims: persons that have a reasonable relationship to the defendant's conduct
A defendant is entitled to this when they aren't as responsible for plaintiff's injury as the other co-defendant. (
Contribution
Separate from the other thing* (Grossman) and applies to only two very extreme situations (possession of wild animals, and abnormally dangerous activity)
Strict Liability.
Contrast the intentional/negligent version of Misrepresenation/Fraud/Deceit
1. Misrep of material fact, where defendant knows/should know is false, induces reliance, and plaintiff is injured based on that reliance
2. Mislead by accident in a fiduciary relationship, where the plaintiff is injured based on that reliance
This law professor uses bright colors and themes to ingrain the theory of negligence into his student's unwilling brains.
These 3 things are what you need to bring a suit of Negligence Per Se
1. Violation of a statute (assumed duty)
2. Plaintiff is a member of the class the law is protecting
3. Injury is one that the statute seeks to protect
This defense doesn't help a plaintiff who is negligent themselves, unless the defendant had a 'Last Clear Chance' to avoid injury, and didn't.
Contributory Negligence
Vicariously living at work can lead to Vicarious Liability, which is....?
1. Employer liable for negligent acts of employee
2. When employee acts within scope of employment
3. Not applicable to intentional acts or independent contractors
Johnny Depp sued Amber Heard for this. What did he have to prove?
Defamation:
1. False statement (truth is an absolute defense)
2. Published
3. That hurts the plaintiff's reputation
This Judge said “where there is the unreasonable act, and some right that may be affected there is negligence whether damage does or does not result.” Otherwise known as...the Zone of Danger
William Andrews.
It's English translation and an example (helps more with the definition)
2. A barrel of flour falling out of a building while someone is inside
Assumption of the risk:
1. Plaintiff knows/appreciates the danger of a risk, and continues with their activities
Assumption of the Risk
This is a "nice-looking" nuisance! What does it require? Look out, kids!
1. Owner knows/should know kids will trespass
2. Condition is an unreasonable risk of harm
3. Kids unable to recognize risk
4. Cheaper to fix the risk than the harm to kids
5. Owner aware and fails to make safe
Worst Zoom Fear
"I have to take a S***"- Barry Law Student, summer 2021
The prima facie elements for negligence
1. Duty of Care
2. Breach of Duty
3. Actual and Proximate Causation
4. Damages
Multiple people causing a single injury to plaintiff! All defendants are____ &_____ liable.
Joint & Severally
Also known as Strict Liability in Tort, and what are its elements?
Strict Product Liability:
1. Defective product
2. Sold by commercial seller
3. To a foreseeable user
4. Used in a manner it was intended
5. Product unchanged
These are four types of Invasion of Privacy
1. False light
2. Appropriation (A.I)
3. Public disclosure of a private matter
4. Intrusion upon seclusion
This SCOTUS Judge developed the theory of proximate cause on a railway...and was often butting heads with William Andrews.
Benjamin Cardozo