Torts Negligence duty - MBE

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  1. What are the elements of negligence?
    • (1) duty
    • (2) standard of care
    • (3) breach of duty
    • (4) cause in fact
    • (5) proximate cause
    • (6) damages
    • (7) defenses      
  2. According to the general duty rule, when is a duty owed to a foreseeable P?
    when D is engaged in affirmative risk creating conduct causing personal injury or property damage
  3. Duty is a significant issue where there are one of what 4 things present?
    • (1) unforeseeable P
    • (2) non-feasance - failure to act
    • (3) harm other than personal injury or property damage
    • (4) where D is land possessor, L, utility, or gov entity   
  4. Regarding unforeseeable P, how did Justice Cardozo articulate the rule in Palsgraf?
    D only owes a duty to foreseeable Ps
  5. Are rescuers foreseeable Ps?
    yes they are per se foreseeable and thus are owed an independent duty
  6. What is the public policy reason behind treating rescuers as per se foreseeable?
    want to promote rescue and therefore want them reimbursed for any injury suffered as a result of that rescue
  7. What is the general rule regarding a rescuer's duty?
    rescuer must act reasonably in effecting the rescue
  8. What is the definition of nonfeasance?
    the failure to act
  9. What are the different types of misfeasance?
    • (1) affirmative risk creating conduct
    • (2) Negligent Omission - failing to do something that creates risk of harm and an otherwise reasonable person would have done it 
  10. Nonfeasance begins with what assumption?
    there is no duty at all
  11. Is there a general duty to rescue or aid?
  12. When is there a duty to rescue or aid?
    • (1) D tortious conduct creates the need for rescue
    • (2) D undertakes to act
    • (3) D creates reliance
    • (4) special relationship   
  13. What are Good Samaritan statutes?
    those who do rescue others aren't liable for simple negligence and must be more culpable before liability will be imposed
  14. What kind of special relationship creates a duty to rescue or aid?
    • one in where there is dependence or mutual reliance
    • (i.e. - parent/child, innkeeper/guest, common carrier/passenger, teacher/student) 
  15. What is the general rule regarding the duty to control 3Ps?
    there is no duty to control the conduct of a 3P as to prevent him from causing physical harm to another
  16. What are the exceptions to the general rule that there is no duty to control the conduct of 3Ps as to prevent him from causing physical harm to another?
    • (1) a special relationship exists that imposes a duty upon the D to control the 3Ps conduct
    • (2) a special relationship exists that gives the 3P a right of protection
  17. What is the traditional rule regarding the providers of alcohol?
    social host or commercial establishment that provided alcohol owes no duty
  18. What are the Dram Shop Acts?
    impose liability on commercial establishments who serve alcohol to individuals they know or should have known were drunk
  19. Are the Dram Shop Acts extended to social hosts?
  20. What is negligent entrustment?
    a form of misfeasance that arises when D gives something to someone he knows or should know is incapable of handling it
  21. Does one generally have a duty to take affirmative steps to protect against 3P criminal attacks?
  22. When is there a duty to take affirmative steps to protect against 3P criminal attacks?
    social relationship with a high level of foreseeability

    many jurisdictions require showing prior similar incidents to show foreseeability - relationship alone is insufficient   
  23. If a gov entity is engaging in a proprietary function, what is the level of duty owed?
    if gov entity is acting in an area traditionally occupied by private entities then will be treated as any other D for purposes of determining duty
  24. If a gov entity is using judgment/discretion and allocating resources, will the court find that it owes a duty?
  25. Once a gov entity has undertaken to act, how must it do so and is there a duty?
    it must do so non-negligently and the courts will find a duty
  26. What is the public duty doctrine?
    when a gov agency is sued for failing to provide an adequate response, courts will find no duty
  27. What are the exceptions to the public duty doctrine in which a duty will be imposed on a gov agency for failing to provide adequate response?
    • (1) there has been reliance on the response of the agency
    • (2) there is a special relationship b/t the P and agency
    • (3) the agency has increased the danger beyond what would otherwise exist  
  28. To whom is the duty imposed if the D is a utility?
    only those who are in privity of K to the utility
  29. If the P's injury consists of only emotional distress, who do the courts feel about recovery?
    • they have been worried about allowing recovery b/c hard to measure and easily faked
    • special rules apply for claims of pure emotional distress however pain and suffering aren't subject to these limitations 
  30. In most jurisdictions, to recover for emotional distress what must the P show?
    • (1) was in the zone of danager
    • (2) physical manifestation of emotional distress 
  31. What is the zone of danger?
    • area inwhich one is at risk of suffering physical injury
    • near miss 
  32. What are direct actions in NIED?
    D engages in negligent conduct and as a result P suffers emotional distress and perhaps some manifestation of that emotional distress
  33. What are the exceptions to requiring the P to show he was in the zone of danger and suffered some physical manifestation of emotional distress before can recover?
    • (1) D negligently transmits a telegram announcing the death of a loved one
    • (2) D negligently mishandles a corpse
  34. In a minority of jurisdictions, the P may recover for NIED if the D has what?
    a preexisting duty to the P
  35. What are bystander actions in NIED?
    phyiscal harm occurs to a loved one, and the P sues for his emotional distress as a result of the injury to another
  36. On what duty are bystander actions in NIED premised?
    not to negligently cause emotional distress to people who observet eh conduct which causes harm to another
  37. Many jurisdictions require the bystander to be where to recover?
    in the zone of danger
  38. What are the elements for recovery for NIED under a bystander theory?
    • (1) was located near the scene of the accident
    • (2) suffered severe emotional distress
    • (3) had a close familial relationship with V  
  39. What is wrongful conception?
    the injury is a birth of a healthy child and generally arises where P has negligently performed vasectomy or other negligently adminstered form of bc
  40. What are the damages involved in wrongful conception?
    • (1) cost of the birth
    • (2) cost to rectify the ineffective contraceptive measure 
  41. What is wrongful birth?
    claim of parents for the birth of an unhealthy child
  42. Wrongful birth claims generally stem from what?
    physician's failure to diagnose a disability in the fetus which the P claims would have lead her to not give birth to her child
  43. What are the damages associated with wrongful birth?
    some courts will award the extraordinary costs of having a child with special needs but the jury may offset this award by the benefit obtained from having the child
  44. Do many courts recognize wrongful birth claims?
  45. What is a wrongful life claim?
    child's action for having been born unhealthy
  46. Do most courts aware damages for wrongful life claims?
  47. If a court does award damages for wrongful life, what will it be?
    the cost of the child's special needs after the age of majority
  48. Who is an invitee?
    a person who enters onto the D's land at the D's express or implied invitation, and who enters for a purpose relating to the D's interest/activities
  49. Who is a business invitee?
    • one who enters the D's land for purpose related to the D's business activities/interests
    • confers an economic benefit on D 
  50. What are the 2 types of invitees?
    • (1) business invitee
    • (2) public invitee 
  51. Who is a public invitee?
    one who enters D's land for purpose as to which the land is held open to the public
  52. What is the D's duty to an invitee? 
    to exercise reasonable care to prevent injuries caused by activities conducted on D's land
  53. Who is a licensee?
    • a person who enters onto D's land with the D's express or implied permission but is NOT conferring an economic benefit to the D
    • i.e. - social guests 
  54. Land possessors must warn licensees of what?
    known, concealed dangers
  55. Who are trespassers?
    ppl who enter land w/o express or implied consent of land possessor
  56. What is the only obligation a D owes to a trespasser?
    avoid infliction of willful and wanton harm
  57. What is D's duty regarding activities on his land?
    duty of reasonable care to any land entrant other than an unknown trespasser
  58. For whom does a land owner have a duty to search out dangers on the property if a RPP would do so?
  59. What must a landowner warn known or frequent trespassers of?
    known, concealed artificial dangers
  60. Must landowners warn known or frequent trespassers about natural conditions on their land?
  61. Under the attractive nuisance doctrine, if the conditions apply the trespassing child will be treated as what?
    an invitee owed a duty of reasonable care
  62. What are the 5 factors for determining if something constitutes an attractive nuisance?
    • (1) too young to appreciate the danger?
    • (2) foreseeable that there will be trespassing children?
    • (3) does D know of dangerous condition on the property?
    • (4) is it an artificial condition?
    • (5) is the risk so great that it outweighs the utility of what D is doing and the burden of preventing the harm     
  63. What is the minority approach regarding a landowner's duty to people on his land?
    duty of reasonable care regardless of the status of the person
  64. What is the duty of care toward a P not on the land for artificial conditions on the land?
    reasonable care
  65. What is the duty of care toward a P not on the land for natural conditions on the land?
    no duty unless it is a tree in an urban area
  66. Landlords are only liable in what 4 instances regarding people on leased premises?
    • (1) common area
    • (2) negligent repairs
    • (3) known hidden dangers defect on the property at the time property is leased
    • (4) L knows that T is going to hold the property open to public at large    
  67. If the L knows of hidden dangerous defects on the property at the time the property is leased, how long will he be liable for an injury resulting from it?
    until such time as the T should have discovered the condition
  68. If the L knows that the T is going to hold the property open to the public at large, what is his duty?
    to exercise reasonable care to discover and repair hidden dangerous defects
  69. What is the RPP under the same or similar circumstances standard?
    jury decides as representatives of the community what is acceptable conduct in the community and whether the D has met it
  70. When is the RPP not altered to account for D's physical disability?
    the disability is the result of the D's voluntary intoxication
  71. What doesn't the jury consider when evaluating the D under the RPP standard?
    • (1) mental authority/sanity
    • (2) reflexes 
  72. What does the RPP standard take into account?
    • (1) physical conditions
    • (2) emergency - if D is acting in context of emergency not of her own making was D's conduct reasonable in that emergency situation 
  73. What is the analysis of breach when D failed to act as a RPP?
    • (1) what is the D's specific unreasonable conduct?
    • (2) what is the probability of harm based on what D did or didn't do?
    • (3) what is the likely injury based on what D did or didn't do?
    • (4) what would it take for the D to act differently?   
  74. What is custom evidence?
    how a person engaging in the D's activity would have customarily behaved
  75. Who does a deviation from custom favor?
  76. Who does compliance with a custom favor?
  77. Does the RPP standard specifically take age into account when the D is a minor?
  78. What is the majority RPP standard regarding children?
    a minor D's conduct is assessed according to what a reasonable child of the same age, education, intelligence, and experience would have done
  79. What is the subjective part for the child RPP standard?
    looking at this particular child D
  80. What is the objective part of the child RPP standard?
    compare child D to other reasonable children of same age, education, intelligence, and experience
  81. What is the minority Rule of 7s regarding children duty?
    • (1) under age 6 then D conclusively presumed incapable of being negligent
    • (2) ages 6-13 then D is rebuttably presumed not negligent
    • (3) over age 14 then D is rebuttably capable of being negligent  
  82. In what situation is the child RPP not applied to a child D?
    when the child D is engaged in adult activity
  83. What is negligence per se?
    when a D violates a statute, ordinance, or regulation that is used to determine the standard of care
  84. What do judges consider when determining whether a statute should apply as the standard of care?
    • (1) was P in class which statute was designed to protect
    • (2) was the harm suffered that which the statute was designed to protect against 
  85. Under the majority, the unexcused violation of a statute, regulation, or ordinance establishes what?
    conclusively that hte D breached his duty to the P
  86. Under the minority what does a qualified violation of a statute by D do?
    either raises a rebuttable presumption or is prima facie evidence that D's conducted breached the duty to P
  87. If a statute doesn't set the standard of care, what standard is used?
  88. When will the statute standard not apply?
    • (1) more dangerous to comply with the statute
    • (2) emergency 
  89. Will a licensing statute be used as the standard of care?
  90. What is the standard of care for lawyers, doctors, accountants, and architects?
    the customary practice of the profession
  91. What establishes the breach of duty for lawyers, doctors, accountants, and architects?
    deviation from the customary practice
  92. With medical malpractice, doctors are required to possess and use what?
    the knowledge, skill, and training of other doctors in good standing in the relevant geographic community
  93. What is the focus for medical malpractice when dealing with specialists?
  94. What is the focus of medical malpractice when dealing with general practitioners?
    same or similar locality
  95. What is a lack of informed consent claim?
    P is suing b/c doctor failed to disclose material information to the P
  96. Traditionally doctors must divulge those risks that are what?
    customarily divulged
  97. What is the patient rule regarding the standard of materiality in lack of informed consent?
    • requires doctors to disclose all material risks
    • all those which a reasonable patient would want to know when deciding whether to undergo a particular procedure 
  98. In order to prevail in a legal malpractice action, what must a P show?
    if it hadn't been for the lawyer's malpractice, the P would have otherwise prevailed on the underlying claim
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Torts Negligence duty - MBE
MBE Negligence duty
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