Duty
Under what instances is the reasonable person standard modified.
Hint: when using the S.O.C. we usually change the "similar circumstances" phrase, but for these modifications we are changing the "reasonable person" phrase.
Bonus 50 pts each: Describe how each instance alters the standard of care.
It is important to note that, according to the Restatement Second of Torts, "The care required is always reasonable care. The standard never varies." Thus, while the label (reasonable care) is fixed, the exceptions specify what defines "reasonable" for certain actors.
What are 1) physically disabled individuals, 2) actors with superior knowledge, and 3) children.
Bonus:
1) "ordinarily prudent person with a like infirmity would have exercised under the same or similar circumstances"---Shepherd v. Gardner Wholesale, Inc.
2) If an actor possesses more than the minimum necessary qualities (such as attention, perception, memory, knowledge, intelligence, and judgment), they are required to exercise those superior qualities in a manner reasonable under the circumstances--- Hill v. Sparks
3) "how a minor of similar age, mental capacity, and experience would conduct himself"--- Stevens v. Veenstra
This principle establishes that the mere occurrence of an accident, without more, is insufficient proof of a breach of duty, as stated in the case of Gift v Palmer.
What is the principle that the mere happening of an accident is not proof of a breach?
Besides physical injury, the sources specifically list these two categories of damage to things as meeting the requirement for actual harm.
What are damage to real property and damage to personal property?
This is the primary test for factual causation, requiring proof that the plaintiff's injury, X, would not have happened absent the defendant's action, Y.
Exceptions are when there are _____.
What is the But-for Test?
What are multiple actors?
Traditional rule. Both tortfeasors are 100% liable. Plaintiff can go after one for the full amount. If one tortfeasor pays the full judgment, she can seek contribution. The risk of insolvency falls on the tortfeasor.
What is Joint and Several Liability?
This classification of entrant on land, often including social guests who are there with the possessor's consent, requires the landowner to use ordinary care only to warn of, or make safe, dangerous conditions of which the owner is aware, but imposes no duty to inspect.
What is a licensee?
Describe the Hand Formula, it's variables, and what each expression means.
When B>PL, the defendant is not negligent.
When B<PL, the defendant is negligent.
In Berry v. City of Chicago, the court ruled that simply showing what condition was not sufficient to prove a negligence claim, necessitating actual injury.
What is increased risk? Ex. risk of exposure to lead.
A defendant's conduct is sufficient to meet the factual cause element even if it is not the sole reason for the injury, provided it is considered this.
What is a cause (or a cause-in-fact)?
Each party is responsible for only the percent of the damages attributable to her fault. If one tortfeasor is insolvent, the risk falls to the plaintiff.
What is Proportionate Share Liability?
Contrary to the general duty rule for establishing the S.O.C., this specialized area of negligence requires that industry custom concerning what the average qualified practitioner would do in a situation actually sets the standard of care.
Under this principle for proving breach, particularly relevant in trip-and-fall cases like Renner v. Retzer Resources, the plaintiff can show the dangerous condition existed for a significant amount of time such that the defendant should have known about it.
What is constructive notice (or the third tier of the trip-and-fall test)?
These are the conditions for Res Ipsa Loquiturn (RIL).
Hint: The thing speaks for itself.
Bonus 75 pts:
In these cases, the judge instructs the jury that they MAY draw the inference of negligence because the facts are _______, not just ______.
1. The accident must be of a kind that typically only happens when someone is negligent; and
2. The object that caused injury must have been within the defendant's exclusive control; and
3. The plaintiff's own voluntary actions must not have contributed to the injury.
Real test is that it is more likely than not that it was the defendant's breach, not someone else's, that caused the harm
Bonus:
unknowable; unknown
This test is used when the plaintiff's injury resulted from two or more acts, each of which alone was sufficient to cause the alleged harm. Two or more sufficient causes to the injury.
Bonus: When there are 2 or more necessary causes to the injury, each would be tested by which test.
What is the Substantial Factor Test?
Bonus:
The But-For Test! Substantial factor is only when there are two or more sufficient factors.
This test is where one breaching party was the but-for cause and the other was not, but it was impossible to determine which party was which?
In this very rare case, the court shifts the burden of proof to the ______.
What is the Summers v. Tice.
What is the Defendant to disprove?
Established in Tarasoff v. Regents of University of California, this required action arises when a defendant (A) has a special relationship with an aggressor (B) and determines that B poses a threat to a third party (C), prioritizing the victim's safety over confidentiality.
What is the duty to warn?
In cases where the doctrine of Res Ipsa Loquitur is invoked, the requirement of "exclusive control" over the injury-causing object is often interpreted to mean this, especially when instrumentalities are available to the public.
What is exclusive responsibility?
AKA exclusive control
The doctrine apple when a statute established the standard of care such that a violation of a statute constitutes breach as a matter of law.
Bonus 50 pts: Name the three requirements.
What is negligence per stay?
Bonus:
1) defined conduct
2) type of injury
3) protected class
Duty and breach must be prove by a ____ of ____.
A party must be able to point to ________________.
We can use _______ _______ and draw inferences from that evidence.
What is a preponderance of evidence?
What is something the other party should have done differently?
What is circumstantial evidence?
"Danger invites rescue." Therefore a rescuer is a foreseeable plaintiff.
The rule that says you take the plaintiff as you find her.
What is the Rescue Doctrine?
What is the thin skull rule?
This test, used by courts (such as in Posecai v. Wal-Mart Stores, Inc.) to determine a landowner's duty to protect invitees from criminal acts of third persons, weighs the foreseeability and gravity of the potential harm against the commensurate burden imposed on the business to protect against that harm.
What is the Balancing Test/Rule?
This 1932 case established that compliance with industry custom does not necessarily set the standard of care, ruling that a tugboat company was negligent for failing to use safety equipment (radios) even though it was not customary.
Bonus 50 pts: Explain why the judge determined breach despite radios hardly being used in the practice. Include facts from the case!
What is The T.J. Hooper?
Bonus:
The judge felt the because the radios were inexpensive, readily available, and would benefit the tugboats so much that the practice ought to adopt the technology. The court emphasized the importance of industry professionals constantly improving safety conditions. Sometimes the standard of care is higher than what customs suggest.
Unable after reasonable diligence or care to comply.
Emergency.
Compliance would be a greater risk.
In divisible injuries, we divide liability by _____.
When the breach of multiple parties combines to produce a single injury, we can't apportion by ^^^, so we apportion by ____.
What is causation?
What is fault?
The definition of Proximate Cause/the phrase we use in class.
Bonus: Name a complete defense to negligence and the exceptions.
What is "Gee, I'd better not X,Y,Z because x,y,z will happen to he/she"?
What is contributory negligence? What is when the plaintiff was rescuing someone and when the defendant has the last clear chance to prevent the injury?
Could have said 'What is express or implied primary AOR?' If agreement is not voluntary or against public policy, it will not be a defense. (Implied secondary is a partial defense and merges with comparative negligence)