Elements
What are the elements of Negligence
Duty, Breach, Causation, Damages
What is the doctrine of joint and several liability?
Each of two or more defendants who are found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm
What are the elements of Zone of Danger
A plaintiff can recover for NIED if the plaintiff was within the "zone of danger" of the threatened physical impact AND the threat of physical impact caused emotional distress
What are compensatory damages and its purpose?
It is economic and non-economic damages, which can include the cost of physical injuries and pain and suffering. The purpose is to make the plaintiff whole again.
What are the two parts of causation?
Part 1: actual cause (cause in fact) – “but for” tes
Part 2 proximate cause (legal cause) – requires that the plaintiff suffer a foreseeable harm that is not too remote and is within the risk created by the defendants conduct.
What is the general rule of the rescue doctrine?
Rescuers can recover for injuries sustained while attempting to rescue another if that person's peril was caused by the defendant's negligence
What are the elements for Bystander Recovery?
A bystander can recover for NIED if the bystander: is closely related to the person injured by the defendant, was present at the scene of the injury, personally observed the injury, and the proximity requirement is met
When is punitive damages available and what is the purpose?
Punitive damages may be available if the defendant acted willfully, wantonly, recklessly, or with malice, or if an inherently malicious tort is involved. the purpose is to punish and deter future conduct.
What are the traditional requirements for res ipsa loquitor?
The accident was of a kind that originally does not occur in the absence of negligence;
It was caused by an agent or instrumentality within the exclusive control of the defendant; and
It was not due to any action on the part of the plaintiff.
What is the standard of care in most cases, and define it.
In most cases, the SOC imposed is that of a reasonably prudent person under the circumstances. A defendant is required to exercise the care that a reasonably prudent person under the circumstances would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person
Can a plaintiff who suffers only economic loss without any related personal injury or property damage recover in negligence?
No! Plaintiff must prove personal injury or property damage to get economic damages
What can the plaintiff recover under contributory negligence?
A negligent plaintiff’s recovery will be reduced by the percentage of his own negligence
What are the elements of negligence per se?
A criminal or regulatory statute (or an administrative regulation or municipal ordinance) imposes a specific duty for the protection of others;
The defendant violates the statute by failing to perform that duty;
The plaintiff is in the class of people intended to be protected by the statute;
The harm is of the type the statute was intended to protect against, and
Once negligence per se is established, for the defendant to be liable, the plaintiff must prove that his injuries were proximately caused by the defendant's violation of the statute.
What level of care is owed to an invitee?
A land owner is to inspect for unknown dangers, make safe or warn, and prevent harm from active operations. The duty of care does not extend beyond the scope of the invitation and the invitee is treated as a trespasser in areas beyond the scope.
What is a Survival Action
A claim brought by a representative of the decedent's estate on behalf of the decedent for claims that the decedent would have had at the time of the decedent's death. Claims can include damages resulting from personal injury or property damage
What can the plaintiff recover under pure comparative negligence?
The plaintiff can recover even if his negligence exceeds that of the defendant.
What are the elements of the Attractive Nuisance Doctrine?
A land possessor may be liable for injuries to children trespassing on the land if:
An artificial condition exists in a place where the owner knows or has reason to know that children are likely to trespass;
The land possessor knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily injury
The children, because of their age, do not discover or cannot appreciate the danger;
The utility of maintaining the condition is slight compared to the risk of injury; and
The land possessor fails to exercise reasonable care
What is the exception to the general rule of the rescue doctrine?
Firefighter Rule - Professional Rescuers cannot recover for injuries attributable to special dangers of their job
What is a Wrongful Birth Claim?
A claim by parents for defendant's negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect.
What can the plaintiff recover under modified comparative negligence?
The plaintiff can only recover if their negligence is less than or equal to the defendant's