Negligence
What are the elements of negligence?
(1) Duty (2) breach of duty (3) causation (Factual + Legal) and (4) Injury which occurs as a result
Y/N: do Americans have a right of "ancient lights"
No. American courts have rejected the traditional rule to have unobstructed light to the grumble line (having half the room illuminated)
Is assumption of risk a defense to strict liability torts?
Yes. Restatement second s 523: “The plaintiff's assumption of the risk of harm from an abnormally dangerous activity bars his recovery for the harm.”
when is Assumption of risk applicable
the plaintiff knew of the existence and nature of a risk yet voluntarily chose to proceed in the face of that risk
What is a 12(b)(6) motion? when is it proper
Motion to dismiss for failure to state a claim, within 21 days after service
Under the majority of states, what is the standard of care of a physician for his patients?
A physician must act within the customs and practices of the national standard for physicians, BUT if that standard violates the hand formula, they may have to act with additional care.
What is a private nuisance?
a non-trespassory interreference in another's use or quiet enjoyment of their land
No. Abnormally Dangerous/Ultrahazardous activities only impose strict liability for the type of harm which makes them abnormally dangerous.
What is the Feres Doctrine
Doctrine preventing members of the armed forces who are injured while on active duty from suing the military/government
what does a red octagon on a case on lexis mean?
its bad law/overturned
(1) under the Cardozo view, whom does a defendant owe a duty of care?
(2) under the Andrews view, whom does a defendant owe a duty of care?
(1) everyone in the zone of danger created by the defendants negligence
(2) everyone
How have American courts treated "coming to the nuisance"
Given the rapid growth of cities, American courts have generally rejected "coming to the nuisance" as an ultimate defense, though it may still be considered as a factor in the case
If a person's pet lion in the united states, who has never shown any outward signs of aggression or bit before, mauls an innocent third party, will it be treated in negligence or strict liability?
Strict Liability. negligence only applies to animals "with the propensity to return" or, under the restatement approach, " an animal that [is] by custom devoted to the service of mankind at the time and in the place in which it is kept."
Stand your ground vs Castle doctrine
Stand your ground: No duty to retreat before resorting to lethal force
Castle doctrine: No duty to retreat while in ones home or the curtilage around ones home before resorting to lethal force
when is a browse wrap agreement valid?
when a reasonably prudent internet user would be put on notice of its existence
What is the duty of care to an unanticipated trespasser?
No duty of care besides to not intentionally harm
How are aesthetic objections treated in nuisance law
anything merely disagreeable, such as a house painted bright pink, are not actionable under nuisance.
What are the three types of defects in product liability, and what do each mean
1 - Manufacturing Defect - the defect is caused by an error in the manufacturing process, and is not purposeful in design
2 - Warning defect - the product is inherently dangerous or has a foreseeable misuse, and fails to warn of those dangers or misuses
3 - Design defect - the product, by design, is unnecessarily dangerous, and a reasonable alternative design exists that would eliminate the danger
contributory vs comparative vs mixed comparative negligence
Contributory: No liability if plaintiff is at least 1% at fault
comparative: liability based on percentage of fault (if defendant is only 15% at fault, then they are 15% liable)
mixed comparative: if plaintiff is a certain percent at fault (generally 50 or 51) then defendant is not liable
difference between fraud in the inducement and fraud in the execution
Fraud in the inducement: false representations of material facts contained in the contract (or that otherwise affect the substance of the contract)
Fraud in the execution: false representation of the contents of a contract, or of circumstances surrounding contracting.
Under what 3 situations does the law recognize a defendant in a negligence suit has a duty to rescue?
(1) when the defendant created the need for a rescue, (2) a special relationship exists (like a firefighter and fire victim) and (3) when the defendant makes a promise to rescue and the plaintiff reasonably relies on that promise.
what are the elements of a public nuisance?
When may a public nuisance not give members of the public a cause of action?
1 - (1) substantial interference with a right (2) common to the public
2 - a public nuisance is only actionable by a private person if they can show they suffered a special injury beyond that suffered by the community at large (532 Madison Ave. Gourmet Foods)
what is the comment K Feldman test for an (un)reasonably (un)safe products?
Brown test?
6(c) test?
Feldman: Drug is reasonably safe when (1) product is intended to confer an exceptionally important and desirable outcome (2) whether the risk is substantial and unavoidable and (3) whether the interests in availability outweigh the interest in accountability through strict liability.
Brown: all prescription drugs are strict liability/unreasonably unsafe
6(c): if it would have benefits to ANY class of patients, it is reasonably safe
Under what exception does exclusive control not apply to Res Ipsa Negligence?
when medical professionals engage in a conspiracy of silence, Res Ipsa negligence may be assumed even though the patient was not under the exclusive control of one physician. (Ybarra)
How many cats (plus or minus 5, I may have counted wrong) has Schaffner introduced us to this semester?
55