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28 Cards in this Set
- Front
- Back
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What are the elements of Negligence ?
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-- duty
-- breach -- causation -- damage |
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-- To establish the "duty" element of negligence, what are the two showings that must be made ?
-- What is the long definition of the "DUTY" element of negligence? |
-- TO WHOM is the duty (obligation) of care owed?
-- HOW MUCH care is owed? -- duty on part of DF -- to conform to a specific standard of conduct -- for the protection of the PF against unreasonable risk of injury |
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In establishing the "duty" element of negligence:
-- who does PF owe a duty of care to? -- how do you determine which persons are owed this duty? |
-- foreseeable victims
-- persons within the "zone of danger" |
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In establishing the "duty" element of negligence:
what is the classic approach to determining who is in the "zone of danger"? |
-- PHYSICAL PROXIMITY to DF's actions or potential consequences
-- ie, persons that are nearby = persons who are foreseeably likely to suffer if you breach your duty of care -- e.g., the train conducter, the person he is pushing onto train, the persons that he is pushing the guy into) |
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In establishing the "duty" element of negligence:
-- besides nearby persons, what is another category of persons who are in the "zone of danger"? |
-- Beneficiaries of legal or business transaction
-- where DF could reasonably foresee their harm |
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In establishing the "duty" element of negligence:
how do you determine the area/size of the "zone of danger" |
-- the size of the zone of danger depends on DF's activity
-- e.g., if handling nuclear weapons in X city, the zone of danger is the city |
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In establishing the "duty" element of negligence:
-- Who does a defendant NOT owe a duty of care to? -- provide two examples |
-- unforeseeable victims (ie, persons outside the "zone of danger")
-- e.g., surprise victims (Mrs. Palsgraf) "hey that's weird that she got hurt) -- e.g., undiscovered trespassers |
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In establishing the "duty" element of negligence:
What are the legal consequences of status as an unforeseeable victim? |
-- an unforeseeable victim in a negligence claim ALWAYS LOSES since he is not owed a duty
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In establishing the "duty" element of negligence:
What is the exception re: rule that duty of care is owed to foreseeable victims ? |
-- exception for rescuers because "danger invites rescue"
-- IF your negligence creates a situation of danger & others arrive to remedy the problem -- THEN you suck them into the zone of danger making them foreseeable victims |
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In the "duty" element of negligence, once you determine TO WHOM the duty of care is owed,
the next step is ... & the general rule is ... |
-- the next step is HOW MUCH CARE does the DF owe to foreseeable victims?
-- general rule: RPP UTC -- the care that would be given by a reasonably prudent person -- under the circumstances |
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To establish the "duty" element of negligence, must establish (i) to whom a duty of care is owed and (ii) how much care is owed to those persons.
Who is the RPP? |
-- the RPP is a hypothetical pocket-protector-wearing creature who lives in our head
-- an adult of average intelligence & experience -- he always plays it safe -- he has no discernible attributes (age, race, gender) |
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To establish the "duty" element of negligence, must establish (i) to whom a duty of care is owed and (ii) how much care is owed to those persons.
-- What is the RPP standard? -- Give an example of applying the RPP standard. |
-- an objective standard (ie, did the DF's actions measure up to the RPP's actions?)
-- that is external to the DF -- ie, DF attributes -- low intelligence, mental illness, inexperience -- are disregarded -- e.g., 16 yo driver first day of driving hits PF; the standard is experienced driver RPP ==> the RPP standard is objective, inflexible, and frequently harsh (because no one acts as carefully as the RPP) |
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To establish the "duty" element of negligence, must establish (i) to whom a duty of care is owed and (ii) how much care is owed to those persons
DF attributes are generally disregarded, describe the exceptions (2) ... |
-- exception: any skill or knowledge that DF has
-- exception: any RELEVANT physical attributes (e.g., epileptic; blind; restricted mobility) -- where these exist, then standard is how would RPP with such physical attributes and special knowledge behave under the circumstances |
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To establish the "duty" element of negligence, must establish (i) to whom a duty of care is owed and (ii) how much care is owed to those persons.
What "superior skill or knowledge" of DF may be taken into account? |
-- classic example: body of learning
-- also: facts known to members of a particular community (e.g., Alaska) -- also: certain facts known to DF -- e.g., obstructed visibility at intersection 2 blocks from home |
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To establish the "duty" element of negligence, must establish (i) to whom a duty of care is owed and (ii) how much care is owed to those persons.
The general standard of care is the RPP/ UTC. -- What is the relevant standard of care that CHILDREN are required to exercise to avoid liability? |
-- age 4yo or younger: legally incapable of negligence
-- for children older than 4yo, the standard is a hypothetical child of like age, experience, and intelligence -- almost exact opposite of RPP ==> ie, it's subjective, flexible, and therefore lenient |
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To establish the "duty" element of negligence, must establish (i) to whom a duty of care is owed and (ii) how much care is owed to those persons.
Given the special "duty of care" standard applicable to CHILDREN, what is the bottom line for children DFs? |
-- in hypo, relevant standard for DF Timmy is that of 6-yo slow-learning kid, riding trike for first time
-- thus, standard becomes "you have to behave like yourself" -- Bottom Line: difficult to hold children liable for negligence because the relevant standard becomes customized to their own attributes |
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To establish the "duty" element of negligence, must establish (i) to whom a duty of care is owed and (ii) how much care is owed to those persons.
What is the EXCEPTION to the special standard applicable to CHILDREN? |
-- IF the child is engaged in an adult activity
-- e.g., operating a motorized conveyance (tractor, ATV, motorboat) -- THEN child's conduct held to the same standard as an adult (ie, RPP / UTC) |
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To establish the "duty" element of negligence, must establish (i) to whom a duty of care is owed and (ii) how much care is owed to those persons.
The general standard of care is the RPP/ UTC. What is the relevant standard of care that PROFESSIONALS are required to exercise to avoid liability? |
-- to avoid professional malpractice, a professional's standard of care is that
-- of the average or usual member of his profession -- practicing in a similar community |
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In the "duty of care" analysis for determining negligence with respect to professionals, what is the difference for generalists and specialists?
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-- for a medical specialist, the national standard of care applies
-- e.g., a GP might not be liable, where a specialist would |
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To establish the "duty" element of negligence, must establish (i) to whom a duty of care is owed and (ii) how much care is owed to those persons.
What is the difference between the general RPP standard, the special standard for children, and the special standard for professionals? |
-- RPP: objective and inflexible (no DF attributes taken into account)
-- Kids: subjective and flexible (all DF attributes taken into account) -- Professionals: EMPIRICAL: grounded in reality; based on what peer group does |
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In the "duty of care" analysis for determining negligence, what persons are considered "PROFESSIONALS"?
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professionals are persons that
-- that render services to the public -- who have special skill and training -- e.g., engineers, accountants, attorneys |
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In the "duty of care" analysis for determining negligence with respect to MEDICAL professionals
-- What note should be made in your essay? -- What is the FL standard for medical professionals? |
-- the jury normally will not know, from its common knowledge, the peer-community standard of care
-- therefore, a PF must establish the peer-community standard of care with an expert witness -- FL: standard of care is based on what is acceptable and appropriate by reasonably prudent "similar health care providers"; where "similar" may be specialists |
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In the "duty of care" analysis for determining negligence with respect to ALL professionals, what note should be made in your essay?
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-- RPP requires reasonable judgment, but in discussing the standard of care for Professionals, what matters is what is reasonable for the GROUP
-- for professionals, what matters is the peer-community standard -- NEVER the DF professional's "reasonable" judgment -- the peer GROUP's reasonable judgment |
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In Florida,
-- who may bring claim regarding pre-natal injuries? -- claim may be brought, provided that ... |
-- parent and/or child may bring claim for pre-natal injuries inflicted by 3p
-- provided that the child is born alive |
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In Florida,
if a 3p negligently fatally injures a fetus, what cause of action may the parents bring? |
-- (MBE) parents can bring wrongful death action
-- (FL) not wrongful death; instead parents may bring action for "negligent stillbirth" for mental pain and anguish damages & medical expenses incident to the stillbirth |
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Assume a parent gives birth to a deformed baby
-- what facts will give rise to a COA? |
-- failure to diagnose congenital defect ("wrongful birth")
-- failure to properly perform contraceptive procedure (e.g., vasectomy) ("wrongful pregnancy") |
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Assume parent have a COA for giving birth to a deformed baby
-- what COAs allow recovery? -- what can parents recover? |
-- for "wrongful birth", parents can recover additional medical expenses to care for child (FL: plus special upbringing expenses)
-- for "wrongful pregnancy", parents can recover labor costs -- parents cannot recover for "wrongful life" |
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In establishing the "duty" element of negligence:
what is the duty owed by common carriers / innkeepers? |
-- required to exercise a very high degree of care towards passengers & guests
-- liable for slight negligence |
