question
Elements of Negligence
answer
duty, breach, causation: in fact and proximate, damages
question
Negligence
answer
- negligence is the failure to use reasonable care, which is the care that reasonably careful person would use under like circumstances
- a duty by the defendant to conform to a standard of conduct; breach by the defendant of the standard of conduct, cause-in-fact; proximate or legal cause; and damages
- a duty by the defendant to conform to a standard of conduct; breach by the defendant of the standard of conduct, cause-in-fact; proximate or legal cause; and damages
question
Pitre v. Employers Liability Assurance Corporation
answer
Facts: Plaintiffs sued for damages following the death of their 9-year-old son. Son was struck in the head by a patron at a fair who was pitching a baseball at a booth. There were no barriers, ropes, or other devices to restrain thrower or separate him from the crowd.
Issue: Was the defendant negligent in not taking precautions to protect patrons from possible injuries from players at the baseball stand?
Holding: The defendant was not liable, incident here was probable but so low that the operators are not negligent
Issue: Was the defendant negligent in not taking precautions to protect patrons from possible injuries from players at the baseball stand?
Holding: The defendant was not liable, incident here was probable but so low that the operators are not negligent
question
Fault
answer
determined by asking the question: How would a reasonably prudent individual have acted or what precautions would he have taken under the same or similar circumstances
question
Breach element
answer
requires that the plaintiff prove that the defendant failed to conform to the requisite standard
question
Cause-in-fact
answer
- generally addresses whether the defendants' wrongful conduct was a but-for cause of the plaintiff's injury
- requires that the risk be both foreseeable and unreasonable
- requires that the risk be both foreseeable and unreasonable
question
Proximate or legal cause
answer
focuses on whether the damage is sufficiently foreseeable or whether other policy considerations should preclude defendant's liability
question
ordinary care
answer
requires only that precautions be taken against occurrences that can and should be foreseen; it does not require that one anticipate unusual and improbable, though entirely possible happenings
question
Reasonable person
answer
- unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances
The most common standard of care in negligence law commands the defendant to act as would a reasonably prudent person in the same or similar circumstances...Failure to do so constitutes unreasonable conduct and, hence, breach of duty
The jury determines what the expected level of conduct in the community should be
The most common standard of care in negligence law commands the defendant to act as would a reasonably prudent person in the same or similar circumstances...Failure to do so constitutes unreasonable conduct and, hence, breach of duty
The jury determines what the expected level of conduct in the community should be
question
US Fidelity & Guaranty Company v. Plovidba
answer
Patrick Huck fell into a hold on a boat and died. The Company was sued for negligence.
No breach of the standard of care. A reasonable person will be able to foresee what a person would do and provide protection, whereas a reasonable person wouldn't be able to predict an unreasonable risk taken by another: Huck took an unreasonable risk when looking to steal liquor from the ship.
Applies the Hand Formula
Rule/Analysis: the practice of leaving the hold open was cost-justified and not negligent
No breach of the standard of care. A reasonable person will be able to foresee what a person would do and provide protection, whereas a reasonable person wouldn't be able to predict an unreasonable risk taken by another: Huck took an unreasonable risk when looking to steal liquor from the ship.
Applies the Hand Formula
Rule/Analysis: the practice of leaving the hold open was cost-justified and not negligent
question
United States v Carroll Towing Co.
answer
Facts: Defendant's tugboat broke loose and caused plaintiff's barge to collide with a tanker. The barge sustained a leak and subsequently sank.
The plaintiff's duty to provide against resulting injuries is a function of three variables: (1) the probability of the boat coming loose, (2) the gravity of the resulting injury, (3) the "burden of adequate precautions."
The plaintiff's duty to provide against resulting injuries is a function of three variables: (1) the probability of the boat coming loose, (2) the gravity of the resulting injury, (3) the "burden of adequate precautions."
question
Substantial Factor test
answer
- use this test when there are multiple contributing factors that might have caused the damages
- have to determine if the negligent conduct was a substantial factor in causing the damage
- Anderson v Minneapolis fire caused by 2 different sources burned onto Anderson's property
- have to determine if the negligent conduct was a substantial factor in causing the damage
- Anderson v Minneapolis fire caused by 2 different sources burned onto Anderson's property
question
Standard of Conduct aka "Standard of Care"
answer
- Negligence Liability only flows where the defendant's conduct has fallen below the relevant standard of care. Failure to meet this standard is characterized as a breach of duty
- Standard of care v. Amount of care
- Standard of care v. Amount of care
question
Cordas v Peerless Transp. Co
answer
Court looks at whether a driver whose taxi struck someone after the driver jumped out to avoid a gun-wielding thief was negligent
Rule of law/Analysis: the law presumes that an act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily founded upon the maxim of self preservation is the first law of nature in this state under the law one is not held in an emergency to exercise of that nature judgement
Reasonableness of defendant's conduct in the context of the circumstances confronting the defendant
Anticipated emergency: even courts that accept the emergency charge find it inappropriate where the emergency should have been anticipated
Emergency Charge: a person in an emergency should not be expected to respond as wisely as if they had the luxury to contemplate their actions less pressured with more time
Rule of law/Analysis: the law presumes that an act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily founded upon the maxim of self preservation is the first law of nature in this state under the law one is not held in an emergency to exercise of that nature judgement
Reasonableness of defendant's conduct in the context of the circumstances confronting the defendant
Anticipated emergency: even courts that accept the emergency charge find it inappropriate where the emergency should have been anticipated
Emergency Charge: a person in an emergency should not be expected to respond as wisely as if they had the luxury to contemplate their actions less pressured with more time
question
The Emergency Doctrine
answer
Cordas is an example of the emergency
Under the emergency doctrine "the jury may consider...that the defendant was acting under the emergency conditions...in other words, the defendant is held to a standard of a reasonable person under those emergency circumstances"
This doctrine does not apply when the emergency is created by the defendant's own tortious conduct
Under the emergency doctrine "the jury may consider...that the defendant was acting under the emergency conditions...in other words, the defendant is held to a standard of a reasonable person under those emergency circumstances"
This doctrine does not apply when the emergency is created by the defendant's own tortious conduct
question
Breunig v. American Family Insurance Co.
answer
Insanity may be a defense to liability for negligence if an individual is suddenly overcome without forewarning by a mental disability or disorder which makes him incapable of conforming his conduct to the standards of a reasonable man under like circumstances.
question
Mental Disability Characteristics in Duty
answer
mental disability irrelevant
"The traditional majority rule holds an insane adult person and/or mentally deficient adult person to a reasonable person standard of care. Unlike in criminal law, no dispensation is made under the majority rule for even extreme mental disability."
"The traditional majority rule holds an insane adult person and/or mentally deficient adult person to a reasonable person standard of care. Unlike in criminal law, no dispensation is made under the majority rule for even extreme mental disability."
question
Physical Disability Characteristics in Duty
answer
physical disability considered
Physical disabilities, such as blindness, seizures, heart attack, and hearing impairment are usually considered when looking at whether someone behaved reasonably.
Physical disabilities, such as blindness, seizures, heart attack, and hearing impairment are usually considered when looking at whether someone behaved reasonably.
question
Neumann v. Shlansky
answer
Facts: An 11-year-old defendant struck plaintiff in the knee with a ball while playing golf. The boy played golf two to three times a week for the last two seasons. The boy called out a warning, but the plaintiff did not hear it. The lower court asked the jury to apply the usual standard of care for an adult golfer.
Issue: What standard of care should be applied to an 11-year-old defendant who regular plays golf?
Holding: Someone who regularly plays the sport should be held to the standard of care of a reasonable person who plays golf, despite his age.
Issue: What standard of care should be applied to an 11-year-old defendant who regular plays golf?
Holding: Someone who regularly plays the sport should be held to the standard of care of a reasonable person who plays golf, despite his age.
question
Special Child Standard of Care R3dT
answer
Courts do not ordinarily impose an adult reasonable person standard when evaluating the conduct of children under negligence
A child's conduct is negligent if it does not conform to that of a reasonably careful person of same age, intelligence and experience
A child less than 5 years old is incapable of negligence Does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults
A child's conduct is negligent if it does not conform to that of a reasonably careful person of same age, intelligence and experience
A child less than 5 years old is incapable of negligence Does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults
question
The Child Standard of Care
answer
The child standard adjusts to take into account the individual intelligence and experience of the particular child
Generally, children are held to a lower standard of care than adults because of "their inability to possess and use the judgment expected of adults."
"Most jurisdictions hold children to a variation of a standard that compares to their conduct to other children of the same age, experience, and intelligence under the circumstances...The jury may still find that the child's conduct was unreasonable in light of her estimated capacity."
Depending on the activity undertaken, a child may still be held to the standard of care of an adult.
Generally, children are held to a lower standard of care than adults because of "their inability to possess and use the judgment expected of adults."
"Most jurisdictions hold children to a variation of a standard that compares to their conduct to other children of the same age, experience, and intelligence under the circumstances...The jury may still find that the child's conduct was unreasonable in light of her estimated capacity."
Depending on the activity undertaken, a child may still be held to the standard of care of an adult.
question
Melville v. Southward
answer
Facts: Defendant is a podiatrist who performed surgery on plaintiff's foot. Plaintiff developed an infection in the bone of her foot following surgery. Plaintiff sued for medical malpractice. At the trial level, plaintiff called an expert witness - an orthopedic surgeon - to testify against the defendant.
Issue: Can a member of a different school of medicine who has not practiced in the field at issue or performed the same surgery testify to the defendant's duty of care?
Plaintiff must prove:
"whether the testifying expert... is by reason of knowledge, skill, experience, training, or education, so substantially familiar with the standard of care applicable to the defendant's specialty as to render the witness' opinion testimony as well-informed as would be the opinion of an expert witness practicing the same speciality as the defendant; or
whether the standard of care for the condition in question is substantially identical for both specialties."
Holding: Remanded. Trial court did not require the plaintiff to establish a proper evidentiary foundation to show that the expert witness knew enough about the podiatric procedure to testify.
Issue: Can a member of a different school of medicine who has not practiced in the field at issue or performed the same surgery testify to the defendant's duty of care?
Plaintiff must prove:
"whether the testifying expert... is by reason of knowledge, skill, experience, training, or education, so substantially familiar with the standard of care applicable to the defendant's specialty as to render the witness' opinion testimony as well-informed as would be the opinion of an expert witness practicing the same speciality as the defendant; or
whether the standard of care for the condition in question is substantially identical for both specialties."
Holding: Remanded. Trial court did not require the plaintiff to establish a proper evidentiary foundation to show that the expert witness knew enough about the podiatric procedure to testify.
question
Cobbs v. Grant
answer
Informed consent is required before surgery and risk and benefits must be informed to the level of a hypothetical reasonable patient
Medical malpractice can also arise from a doctor failing to properly inform the patient about the risks or the details of a procedure. The doctor therefore failed to obtain the patient's informed consent.
Medical malpractice can also arise from a doctor failing to properly inform the patient about the risks or the details of a procedure. The doctor therefore failed to obtain the patient's informed consent.
question
Negligence per se
answer
"The negligence per se doctrine provides that in certain situations a criminal statute (or administrative regulation or municipal ordinance) may be used to set the standard of care in a negligence case."
question
2 factors of negligence per se
answer
1)Was the type of harm suffered is the harm the statute protects against;
2) Was the person harmed within the class of people the statute protects?
ALSO consider whether there were any EXCUSES to non-compliance
2) Was the person harmed within the class of people the statute protects?
ALSO consider whether there were any EXCUSES to non-compliance
question
Wawanesa Mutual Insurance v. Matlock
answer
Facts: Timothy (17-years-old) gave a minor a cigarette. The boys were walking on telephone poles at a private storage facility. The minor dropped the cigarette between the poles, igniting a fire which caused significant property damage. The insurance company sued Timothy and his father. Trial court found Timothy to be negligent per se because he violated a law by giving a cigarette to a minor. Timothy and father appealed.
Issue: Does the negligence per se doctrine apply when the kind of harm that occurred is not the kind of harm the statute violated was designed to protect against?
Holding: No. Timothy is not negligent per se.
Issue: Does the negligence per se doctrine apply when the kind of harm that occurred is not the kind of harm the statute violated was designed to protect against?
Holding: No. Timothy is not negligent per se.
question
Stachniewicz v. Mar-Cam Corp.
answer
a man at bar injured in a bar fight with drunk patrons and was later found outside unconscious.
A violation of a statute constitutes negligence as a matter of law when the violation results in injury to a member of the class of persons intended to be protected by the legislation and when the harm is of the kind which the statute was enacted to prevent.
A violation of a statute constitutes negligence as a matter of law when the violation results in injury to a member of the class of persons intended to be protected by the legislation and when the harm is of the kind which the statute was enacted to prevent.
question
Excuses to Negligence per se R2dT 288A
answer
A. "An excused violation of a legislative enactment or an administrative regulation is not negligence.
B. Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when
(a) the violation is reasonable because of the actor's incapacity;
(b) he neither knows nor should know of the occasion for compliance;
(c) he is unable after reasonable diligence or care to comply;
(d) he is confronted by an emergency not due to his own misconduct;
(e) compliance would involve a greater risk of harm to the actor or to others."
B. Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when
(a) the violation is reasonable because of the actor's incapacity;
(b) he neither knows nor should know of the occasion for compliance;
(c) he is unable after reasonable diligence or care to comply;
(d) he is confronted by an emergency not due to his own misconduct;
(e) compliance would involve a greater risk of harm to the actor or to others."
question
L.S. Ayres & Co. v. Hicks
answer
Boy was injured while using escalator at a department store. Boy claimed that the escalator was unsafe and that store should have warned him.
Trial court noted that the store had acted reasonably in choosing, installing, and maintaining the escalator. There was no duty to prevent the accident. Appellate court held there is generally no duty to help. However, since the store was in control of the escalator, it should have prevented the aggravation of the injuries.
"[T]here may be a legal obligation to take positive or affirmative steps to effect the rescue of a person who is helpless and in a situation of peril, when the one proceeded against is a master or an invitor or when the injury resulted from use of an instrumentality under the control of the defendant."
General Rule: No Duty to Help
Trial court noted that the store had acted reasonably in choosing, installing, and maintaining the escalator. There was no duty to prevent the accident. Appellate court held there is generally no duty to help. However, since the store was in control of the escalator, it should have prevented the aggravation of the injuries.
"[T]here may be a legal obligation to take positive or affirmative steps to effect the rescue of a person who is helpless and in a situation of peril, when the one proceeded against is a master or an invitor or when the injury resulted from use of an instrumentality under the control of the defendant."
General Rule: No Duty to Help
question
Misfeasance
answer
doing something wrong or failing to do something that a reasonable person would do
risk-creating affirmative acts of risk-creating omissions generally give rise to a duty
risk-creating affirmative acts of risk-creating omissions generally give rise to a duty
question
nonfeasance
answer
doing nothing
failing to "prevent harm caused by some other source from occurring"
failing to "prevent harm caused by some other source from occurring"
question
Restatement 2nd of Torts 314
answer
The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action
question
Exceptions to the General no-duty rule
answer
1. An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship.
2. Special relationships giving rise to the duty provided in Subsection(a) include:
a. A common carrier with its passengers,
b. An innkeeper with its guests,
c. A business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises,
d. An employer with its employees who, while at work, are:
In imminent danger: or Injured or ill and thereby rendered helpless,
e. A school with its students,
f. A landlord with its tenants, and
f. A custodian with those in its custody, if: The custodian is required by law to take custody or voluntarily takes custody of the other; and
The custodian has a superior ability to protect the other.
2. Special relationships giving rise to the duty provided in Subsection(a) include:
a. A common carrier with its passengers,
b. An innkeeper with its guests,
c. A business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises,
d. An employer with its employees who, while at work, are:
In imminent danger: or Injured or ill and thereby rendered helpless,
e. A school with its students,
f. A landlord with its tenants, and
f. A custodian with those in its custody, if: The custodian is required by law to take custody or voluntarily takes custody of the other; and
The custodian has a superior ability to protect the other.
question
Miller v. Arnal Corp.
answer
No Duty; (D terminated rescue effort, but D had never made any promise to P to help him)
question
Voluntary undertaking R3dT Physical HArm 42
answer
"An actor who undertakes to render services to another and who know or should know that the services will reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if:
The failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or
The person to whom the services are rendered or another relies on the actor's exercising reasonable care in the undertaking
While people generally have no obligation to intervene, once they do, a duty arises
The failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or
The person to whom the services are rendered or another relies on the actor's exercising reasonable care in the undertaking
While people generally have no obligation to intervene, once they do, a duty arises
question
Wells v. Hickman
answer
Well's son D.E. was killed by Hickman's son, L.H. L.H had a previous history of killing two pets, suicidal thoughts, and serious anger. D.E. and L.H had previously played together with no problems.
Issue: whether Hickman had a duty to control her son; whether she knew or should have known that her son was likely to injure D.E.
The Court held that Hickman did not owe a duty to Wells, because L.H.'s past behavior did not point to homicide.
Issue: whether Hickman had a duty to control her son; whether she knew or should have known that her son was likely to injure D.E.
The Court held that Hickman did not owe a duty to Wells, because L.H.'s past behavior did not point to homicide.
question
Tarasoff v. Regents of the University of California
answer
Poddar killed Tatiana Tarasoff. Tarasoff's parents sued University of California, because prior to the murder, Poddar had confided his intention to kill Tarasoff to Dr. Moore, a university psychologist. Moore had notified campus police who detained Poddar, but he was later released and killed Tarasoff.
Issue: Whether Moore owed a duty to warn the victim or take other reasonably necessary steps to protect the victim.
The court held that there was a duty.
Exceptions to the duty of confidentiality came as a response to this case out of California
Supreme Court of California determined that therapists have a duty to exercise reasonable care to protect a patient's intended victim when the patient communicates to the therapist a threat of violence or death against that person.
To meet their duty of reasonable care, therapists must take the necessary steps to protect the victim, including breaking confidences
Issue: Whether Moore owed a duty to warn the victim or take other reasonably necessary steps to protect the victim.
The court held that there was a duty.
Exceptions to the duty of confidentiality came as a response to this case out of California
Supreme Court of California determined that therapists have a duty to exercise reasonable care to protect a patient's intended victim when the patient communicates to the therapist a threat of violence or death against that person.
To meet their duty of reasonable care, therapists must take the necessary steps to protect the victim, including breaking confidences
question
Duty of Confidentiality
answer
Psychiatrists, psychologists, and other mental health professionals have an ethical and legal duty to keep confidential what they are told by a patient during treatment to protect the patient's right to privacy
question
Davidson v. City of Westminster
answer
Yolanda Davidson was stabbed in a laundromat. Other people had been stabbed in the same location. Police were surveilling the laundromat and saw the assailant and recognized him as the suspect from previous stabbings. The police knew that both Yolanda and the assailant were in the laundromat, and the police did not warn Yolanda. Yolanda sued.
Issue: Whether the police had a duty to warn Yolanda
The court held that there is no duty for police to warn potential victims.
No Police Duty to Protect
Issue: Whether the police had a duty to warn Yolanda
The court held that there is no duty for police to warn potential victims.
No Police Duty to Protect
question
Regents of the University of California v. Superior Court
answer
Issue: Did the university owe a duty of care to Rosen when it was aware that Thompson might pose a threat?
Historical Note: Prior to this case, the answer would have been no. Universities historically have not had a duty to students.
Rule of law: A university's special relationship with it's enrolled students imposes on the university a duty to use reasonable care to protect students from foreseeable violence in the classroom and during curricular activities
Holding and Analysis: yes they have a duty to the student's. Universities can foresee that their failure to control a potentially violent student or to warn students who are foreseeable targets can result in harm to those students
the school's duty is to take reasonable steps to protect students when it becomes aware of a foreseeable threat to their safety. The reasonableness of a school's actions in response to a potential threat is a question of breach."
Historical Note: Prior to this case, the answer would have been no. Universities historically have not had a duty to students.
Rule of law: A university's special relationship with it's enrolled students imposes on the university a duty to use reasonable care to protect students from foreseeable violence in the classroom and during curricular activities
Holding and Analysis: yes they have a duty to the student's. Universities can foresee that their failure to control a potentially violent student or to warn students who are foreseeable targets can result in harm to those students
the school's duty is to take reasonable steps to protect students when it becomes aware of a foreseeable threat to their safety. The reasonableness of a school's actions in response to a potential threat is a question of breach."
question
Dzung Duy Nguyen v. MIT
answer
Nguyen reached out to MIT over concerns about his academic performance. MIT recommended him to several offices, including mental health. Nguyen repeatedly refused to see mental health services, preferring to keep school and mental health separate. Nguyen did not admit suicide ideation to the school. Nguyen eventually died by suicide.
Issue: Did MIT owe Nguyen a duty of care to prevent suicide?
Holding: Under these circumstances, there was no duty. No broad duty to prevent suicide. University and Students: Yes, special relationship w school and enrolled students in school related activities. Duty to Prevent Suicide: There is NO broad duty to prevent suicide. There is a duty to take reasonable steps to prevent suicide when the university has ACTUAL knowledge of prior, recent attempts during time at university, or of a student expressing or stating plans or intentions to commit suicide.
Nguyen v MIT
RESCUE - SPECIAL DUTY RULES
2018, Massachusetts: Nguyen reached out to MIT over concerns about his academic performance. MIT recommended him to several offices, including mental health. Nguyen repeatedly refused to see mental health services, preferring to keep school and mental health separate. Nguyen did not admit suicide ideation to the school. Nguyen eventually died by suicide.
No broad duty to prevent suicide.
University and Students: Yes, special relationship w school and enrolled students in school related activities.
Duty to Prevent Suicide: There is NO broad duty to prevent suicide. There is a duty to take reasonable steps to prevent suicide when the university has ACTUAL knowledge of prior, recent attempts during time at university, or of a student expressing or stating plans or intentions to commit suicide.
Issue: Did MIT owe Nguyen a duty of care to prevent suicide?
Holding: Under these circumstances, there was no duty. No broad duty to prevent suicide. University and Students: Yes, special relationship w school and enrolled students in school related activities. Duty to Prevent Suicide: There is NO broad duty to prevent suicide. There is a duty to take reasonable steps to prevent suicide when the university has ACTUAL knowledge of prior, recent attempts during time at university, or of a student expressing or stating plans or intentions to commit suicide.
Nguyen v MIT
RESCUE - SPECIAL DUTY RULES
2018, Massachusetts: Nguyen reached out to MIT over concerns about his academic performance. MIT recommended him to several offices, including mental health. Nguyen repeatedly refused to see mental health services, preferring to keep school and mental health separate. Nguyen did not admit suicide ideation to the school. Nguyen eventually died by suicide.
No broad duty to prevent suicide.
University and Students: Yes, special relationship w school and enrolled students in school related activities.
Duty to Prevent Suicide: There is NO broad duty to prevent suicide. There is a duty to take reasonable steps to prevent suicide when the university has ACTUAL knowledge of prior, recent attempts during time at university, or of a student expressing or stating plans or intentions to commit suicide.
question
Helfman v. Northeastern University
answer
Issue: Does a college have a special responsibility to prevent nonconsensual sexual encounters between students when a victim is voluntarily intoxicated? Does a college have a duty to protect students from foreseeable criminal acts of 3rd parties?
2) "Summary judgment in favor of a university was upheld in a suit brought by a student who was sexually assaulted because no duty on the part of the university to protect arose since it had at best minimal knowledge of the conditions that gave rise to the particular harm, rendering the assault unforeseeable and although the Court recognized that a college or university will sometimes owe a duty to protect its students from the harms associated with alcohol-related emergencies, that duty was not met in the case at bar."
2) "Summary judgment in favor of a university was upheld in a suit brought by a student who was sexually assaulted because no duty on the part of the university to protect arose since it had at best minimal knowledge of the conditions that gave rise to the particular harm, rendering the assault unforeseeable and although the Court recognized that a college or university will sometimes owe a duty to protect its students from the harms associated with alcohol-related emergencies, that duty was not met in the case at bar."
question
Negligent Infliction of Emotional Distress
answer
An unintentional act causing mental anguish that results in physical injury.
question
Impact Rule (NIED)
answer
States that victims must be impacted physically by the defendant's conduct in order to recover for infliction of emotional distress
Only used by a few states
The old rule for NIED was the Impact Rule
Only used by a few states
The old rule for NIED was the Impact Rule
question
Prima Facie Case Impact Rule
answer
The Plaintiff was physically impacted
The Plaintiff had "serious" emotional distress
The Plaintiff had physical consequences from the emotional distress
Ex: A horse-drawn carriage almost ran over a pregnant woman. It came very close, but it didn't touch her. Even though her emotional distress was serious enough to cause a miscarriage, she could not satisfy the Impact Rule.
The Plaintiff had "serious" emotional distress
The Plaintiff had physical consequences from the emotional distress
Ex: A horse-drawn carriage almost ran over a pregnant woman. It came very close, but it didn't touch her. Even though her emotional distress was serious enough to cause a miscarriage, she could not satisfy the Impact Rule.
question
Zone of Danger (NIED)
answer
Most states now "allow recovery for mental distress if the plaintiff was at risk of physical impact and suffered a physical manifestation of the distress."
Today, the Zone of Danger Rule is the slim majority
Today, the Zone of Danger Rule is the slim majority
question
Prima Facie Case Zone of Danger
answer
The plaintiff was in the zone of danger
Target zone of physical risk determined by the judge
You do not have to be physically impacted or injured
The plaintiff has "serious" emotional distress
The plaintiff has physical consequences of the emotional distress
"Most states also require that the victim's mental distress be sufficiently [serious] to cause physical symptoms of the distress."
Target zone of physical risk determined by the judge
You do not have to be physically impacted or injured
The plaintiff has "serious" emotional distress
The plaintiff has physical consequences of the emotional distress
"Most states also require that the victim's mental distress be sufficiently [serious] to cause physical symptoms of the distress."
question
Dillon v. Legg
answer
Father claiming emotional distress as a result of witnessing his child be injured by a car from across the street.
Court developed three factors to consider in determining if there was a duty to the bystander
the Dillon factors is the modern trend in bystander actions
Court developed three factors to consider in determining if there was a duty to the bystander
the Dillon factors is the modern trend in bystander actions
question
3 factors determining if there was a duty to the bystander
answer
"Whether plaintiff was located near the scene of the accident;
Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident; and
Whether the plaintiff and the victim were closely related.
Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident; and
Whether the plaintiff and the victim were closely related.
question
Prima facie case of NIED under Dillon, plaintiff must prove
answer
The plaintiff was present at the scene of the accident
The plaintiff's distress was caused by the sensory and contemporaneous observation of the accident Don't necessarily have to see it
The plaintiff has to have a close relationship with the victim Usually only married spouses, parents, children, and siblings
The plaintiff's distress was caused by the sensory and contemporaneous observation of the accident Don't necessarily have to see it
The plaintiff has to have a close relationship with the victim Usually only married spouses, parents, children, and siblings
question
Review of NIED
answer
Requires "Serious" Distress
The Impact Rule (The "Old" Rule)
The Zone of Danger Rule (The Modern Majority Rule)
The Dillon Factors (A Modern Trend)
The Impact Rule (The "Old" Rule)
The Zone of Danger Rule (The Modern Majority Rule)
The Dillon Factors (A Modern Trend)
question
Conditions on Premises
answer
passive conditions causing injuries on premises Entrant Status matters for duty
question
Conditions off premises
answer
reasonable care for off premises conditions, such as trees overhanging onto stop signs
question
activities on premises
answer
there is a duty; typically reasonable person standard of care
question
activities off premises
answer
there is a duty; typically reasonable person standard of care
question
condition example
answer
a banana someone threw laying on the ground
a dangerous person on your property can be a condition
a dangerous person on your property can be a condition
question
activity example
answer
throwing the banana
question
4 types of landowner duties
answer
Trespassers
Invitees: business invitees, invitee by public invitation
Licensees
Child Trespassers
Invitees: business invitees, invitee by public invitation
Licensees
Child Trespassers
question
Landowner Duties: Invitees
answer
"Include[s] those entering the land for the business interest of the landowner or as a member of the public when the land is open to the public ( e.g., a visitor to a public museum or library"
Two types of invitees:
- Business invitees
- Invitee by public invitation
Within the scope of invitation (time and space)
Taking into account foreseeable deviations
Standard: Reasonable care
- Duty to warn invitees of dangers that you know about (actual)/you should have known about (constructive) Duty to inspect/patrol premises
- Exception: no duty with respect to open and obvious dangers
- Exception to the exception: if an invitee becomes distracted, is carrying a bundle of goods, and/or a long period of time has lapsed, the danger could cease to be open and obvious
- Ex: Ward v. Kmart: man walked out towards parking lot with mirror, ran into pylon
Two types of invitees:
- Business invitees
- Invitee by public invitation
Within the scope of invitation (time and space)
Taking into account foreseeable deviations
Standard: Reasonable care
- Duty to warn invitees of dangers that you know about (actual)/you should have known about (constructive) Duty to inspect/patrol premises
- Exception: no duty with respect to open and obvious dangers
- Exception to the exception: if an invitee becomes distracted, is carrying a bundle of goods, and/or a long period of time has lapsed, the danger could cease to be open and obvious
- Ex: Ward v. Kmart: man walked out towards parking lot with mirror, ran into pylon
question
Landowner Duties: Licensees
answer
A licensee is a person who is tolerated or permitted to be on the premises
Police, firefighters, EMT, social guests
Owner has a duty to warn if he or she: AND TEST
- Knows or has reason to know of their presence
- Knows or has reason to know of the danger
- Knows or has reason to know that they are going to encounter the danger
- Exception: no duty to warn if danger is open and obvious
Police, firefighters, EMT, social guests
Owner has a duty to warn if he or she: AND TEST
- Knows or has reason to know of their presence
- Knows or has reason to know of the danger
- Knows or has reason to know that they are going to encounter the danger
- Exception: no duty to warn if danger is open and obvious
question
Landowner Duties: Trespassers
answer
- A trespasser comes onto the property without the consent, express or implied, of the owner, and is not privilege to enter.
- Owner has a duty to warn if he or she: NEED ALL 3
1. Knows of the trespasser
2. Knows of the danger
3. Knows the trespasser will encounter the danger
-Exception: open and obvious danger
- Doesn't have to be a perfect warning, just a warning
- Trespasser in a frequented area is equivalent to knowledge so there is a duty to warn of danger unless it is open and obvious
- Owner has a duty to warn if he or she: NEED ALL 3
1. Knows of the trespasser
2. Knows of the danger
3. Knows the trespasser will encounter the danger
-Exception: open and obvious danger
- Doesn't have to be a perfect warning, just a warning
- Trespasser in a frequented area is equivalent to knowledge so there is a duty to warn of danger unless it is open and obvious
question
Landowner Duties: Child Trespassers
answer
- Old rule: The Attractive Nuisance Doctrine
- Landowner liable if:
- A child of "tender years" was lured onto the premises by an "attractive nuisance," likely to incite his or her interest, such as a railroad turnstile or a swimming pool.
- "Tender Years" was quite young, maybe up to 8, but not double digits
- The children were hurt by what lured them onto the property The Landowner failed to use reasonable care
- United Zinc & Chemical Co. v. Britt: Since the kids were not lured onto the land by the pool, no duty.
- Landowner liable if:
- A child of "tender years" was lured onto the premises by an "attractive nuisance," likely to incite his or her interest, such as a railroad turnstile or a swimming pool.
- "Tender Years" was quite young, maybe up to 8, but not double digits
- The children were hurt by what lured them onto the property The Landowner failed to use reasonable care
- United Zinc & Chemical Co. v. Britt: Since the kids were not lured onto the land by the pool, no duty.
question
The Child Trespasser Doctrine
answer
Under the Restatement (Second) of Torts, judges weigh the following factors to determine liability:
1. "the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
2. The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
3. The children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
4. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
5. The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children."
1. "the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
2. The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
3. The children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
4. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
5. The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children."
question
Yonce v. Ferguson
answer
- Younce was injured by Ferguson who was driving a car on property owned by the Strunks. The Strunks' son was throwing a kegger, and Younce was struck by a car. The trial court dismissed the Strunk parents from the case. Younce appealed the dismissal.
- Younce argued she was an invitee on the Strunk property and the Strunks owed her a duty as such. The trial court classified her as a licensee and held that the Strunks had not breached a duty to her.
- As a licensee, Younce was only owed a duty if there was an unreasonable risk of harm and the licensee did not know and had no reason to know.
- Court held that it was likely not the parent Strunks that invited Younce, and as a licensee, she was not entitled to the Strunks' preparation of land for her.
- Younce argued she was an invitee on the Strunk property and the Strunks owed her a duty as such. The trial court classified her as a licensee and held that the Strunks had not breached a duty to her.
- As a licensee, Younce was only owed a duty if there was an unreasonable risk of harm and the licensee did not know and had no reason to know.
- Court held that it was likely not the parent Strunks that invited Younce, and as a licensee, she was not entitled to the Strunks' preparation of land for her.
question
United Zinc & Chemical Co. v Britt
answer
- Petitioner owned twenty acres where there used to be a plant. The water collected there was full of chemicals. Two children crosses Petitioner's property, went into the water, and died. Their parents sued.
- Issue: Did the Petitioner owe a duty to the children when it was not apparent that they were enticed on to his land by the danger?
- Holding: No, because it was not apparent that the pool of water was what brought them onto the property.
- Issue: Did the Petitioner owe a duty to the children when it was not apparent that they were enticed on to his land by the danger?
- Holding: No, because it was not apparent that the pool of water was what brought them onto the property.
question
Rowland v. Christian
answer
Court eliminated distinction between business invitee licensee and trespasser, found land owner/occupier owes a duty to act as a reasonable man for purpose of rendering occupied property safely for others.
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Spears v. Blackwell
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The Blackwells owed land next to a public road. The Blackwells' land was overgrown so that passing cars couldn't see very well. Because of the overgrown vegetation, Spears ran into an oncoming car.
Spears argued that the overgrowth was not a "natural condition" of the land. If it was a natural condition, then the Blackwells had no duty to protect people off their property. If the overgrowth was a man-made condition, then the Blackwells had a duty to Spears.
Because Spears offered evidence that the weeds were a result of a garden planted by previous landowners, the court found that the overgrowth was not a natural condition. The Blackwells therefore owed a duty.
Spears argued that the overgrowth was not a "natural condition" of the land. If it was a natural condition, then the Blackwells had no duty to protect people off their property. If the overgrowth was a man-made condition, then the Blackwells had a duty to Spears.
Because Spears offered evidence that the weeds were a result of a garden planted by previous landowners, the court found that the overgrowth was not a natural condition. The Blackwells therefore owed a duty.
question
Res Ipsa Loquitor
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"The heart of res ipsa loquitor is that from the happening of the accident and the defendant's relationship to it, the plaintiff seeks to establish 1) that the harm-causing event was probably due to negligence and 2) that the defendant was probably the culpable party."
question
Wigmore test for Res Ipsa Loquitor
answer
•The accident must be of a kind that ordinarily does not occur without someone's negligence
•It must be caused by an agency or instrumentality within the exclusive control of the defendant
•It must not have been due to any voluntary action or contribution on the part of the plaintiff
•It must be caused by an agency or instrumentality within the exclusive control of the defendant
•It must not have been due to any voluntary action or contribution on the part of the plaintiff
question
Ybarra v. Spangard
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Quintessential res ipsa loquitur case; the theory underlying res ipsa is that it gives plaintiffs a chance to recover when defendants have information about the negligence but they don't; the number of defendants does not affect the applicability of res ipsa
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But For test
answer
•But for the defendant's negligence, the damage would not have occurred
•Jordan v. Jordan
•But for the defendant's negligence, the accident still would have happened
•Even if she had exercised reasonable care, the accident would have happened anyway
•Jordan v. Jordan
•But for the defendant's negligence, the accident still would have happened
•Even if she had exercised reasonable care, the accident would have happened anyway
question
Substantial factor test
answer
•Use this test when there are multiple contributing factors that might have caused the damage
•Have to determine if the negligent conduct was a substantial factor in causing the damage
•Anderson v. Minneapolis
•Have to determine if the negligent conduct was a substantial factor in causing the damage
•Anderson v. Minneapolis
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Alternative Causation
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If the plaintiff's harm was caused by (i) one of a small number of defendants—usually two and almost never more than four or five, (ii) each of whose conduct was tortious, and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff's harm.
question
Jordan v Jordan
answer
•Wife backed over her husband with a car. Husband was crouched behind the car. Husband testified that he was not where she could have seen him if she had looked in the rearview mirror - which she did not.
•Issue: Was the wife negligent when she failed to look behind the car or in the rearview mirror for the husband before backing over him?
•No, "[s]ince there is no evidence to suggest that the plaintiff could have seen the defendant, we conclude that the defendant's failure to look in the rearview mirror did not cause the plaintiff's injuries and, therefore, does not constitute actionable negligence."
•Issue: Was the wife negligent when she failed to look behind the car or in the rearview mirror for the husband before backing over him?
•No, "[s]ince there is no evidence to suggest that the plaintiff could have seen the defendant, we conclude that the defendant's failure to look in the rearview mirror did not cause the plaintiff's injuries and, therefore, does not constitute actionable negligence."
question
Anderson v. Minneapolis
answer
P's house damaged by multiple fires. Only one fire was alleged to be under the responsibility of the defendant
•The jury at trial was allowed to find negligence even if multiple fires were at fault. Defendant argued for a standard which would only create liability if their fire was the "but-for" cause of the damage. Court allowed multiple fires to be considered if a substantial factor.
•The jury at trial was allowed to find negligence even if multiple fires were at fault. Defendant argued for a standard which would only create liability if their fire was the "but-for" cause of the damage. Court allowed multiple fires to be considered if a substantial factor.
question
Palsgraf v. Long Island Railroad
answer
•Plaintiff was standing on railroad platform. Another patron carrying a covered package of dynamite when he jumped on a train. One guard pulled him onto the train, and another pushed him on to the train. The package fell, the fireworks exploded, and the plaintiff was injured in the explosion.
•Can the plaintiff recover?
•Cardozo (majority): Foreseeable Plaintiff can recover if in the foreseeable zone of danger (if a reasonable person would have foreseen a risk of injury).
•Andrews (dissent): Plaintiff could recover if the defendant proximately caused the injury.
•Can the plaintiff recover?
•Cardozo (majority): Foreseeable Plaintiff can recover if in the foreseeable zone of danger (if a reasonable person would have foreseen a risk of injury).
•Andrews (dissent): Plaintiff could recover if the defendant proximately caused the injury.
question
Zone of Danger: The Reasonably Foreseeable Plaintiff
answer
•"Because Mrs. Palsgraf was not a foreseeable victim of the railroad's apparent negligent handling of the package, Cardozo determined that jury verdict had to be reversed. Mrs. Palsgraf was nowhere near the package, and there was no reason for the guards to believe the package contained fireworks or other explosives. Consequently, she was outside any 'zone of risk,' the area in which she could foreseeably been harmed by the negligent handling of the package. Therefore, she was owed no duty."
•"Judge Andrews . . . rejected the majority's proposition that a duty is owed only to foreseeable victims, viewing a duty as owing to anyone injured by another's unreasonable conduct . . . where the 'act itself is wrongful,' '[i]t is a wrong not only to those who happen to be within the radius of danger but to all who might have been there.'"
•"Judge Andrews . . . rejected the majority's proposition that a duty is owed only to foreseeable victims, viewing a duty as owing to anyone injured by another's unreasonable conduct . . . where the 'act itself is wrongful,' '[i]t is a wrong not only to those who happen to be within the radius of danger but to all who might have been there.'"
question
McCain v. Florida Power corp
answer
•Issue: Was Florida Power's negligent marking of "safe zones" the proximate cause of McCain's electrocution?
•Holding: Yes. Duty is a question for the judge; duty is owed to everyone in the foreseeable zone of risk. "A foreseeable consequence of this sequence of events is that electricity might escape from a severed cable and injure McCain . . ."
•For proximate cause, the jury must examine the specific facts and determine if the Defendant's conduct foreseeably and substantially caused the injury.
•But note the concurrence by Justice Overton: Marking buried cables properly would reduce the power company's liability. If marked properly, a person would know there was a cable. In that case, while there would still be a duty, it would be difficult to prove proximate cause.
•Holding: Yes. Duty is a question for the judge; duty is owed to everyone in the foreseeable zone of risk. "A foreseeable consequence of this sequence of events is that electricity might escape from a severed cable and injure McCain . . ."
•For proximate cause, the jury must examine the specific facts and determine if the Defendant's conduct foreseeably and substantially caused the injury.
•But note the concurrence by Justice Overton: Marking buried cables properly would reduce the power company's liability. If marked properly, a person would know there was a cable. In that case, while there would still be a duty, it would be difficult to prove proximate cause.
question
Direct Causes Proximate Causation
answer
Think no "intervening" causes - uninterrupted chain of events from the negligent act to plaintiff's injury. Apply "thin skull rule": one is the proximate cause of all foreseeable harmful results, regardless of the unusual way those harmful results arose, the extent of the harmful results or the unusual timing of those results. Again, think foreseeability.
question
Indirect Causation Proximate Cause
answer
Think legitimate "intervening" cause that cuts chain of causation, and thus responsibility for one party or several.
question
Directness and "Second Injury"
answer
Common Causes that are considered directly related to someone's negligence: The following are almost always considered foreseeable:
•(i) subsequent medical malpractice, "second injury"
•(ii) negligence of rescuers, "second injury"/ "Danger Invites Rescue"
•(iii) efforts to protect the person or property of oneself or another following an incident (mitigation),
•(iv) injuries caused by another "reacting" to defendant's actions, "second injury"
•(v) diseases caused by or exacerbated a weakened condition resulting from initial injury,
•(vi) subsequent accident substantially caused by the original injury. "second injury"
•(i) subsequent medical malpractice, "second injury"
•(ii) negligence of rescuers, "second injury"/ "Danger Invites Rescue"
•(iii) efforts to protect the person or property of oneself or another following an incident (mitigation),
•(iv) injuries caused by another "reacting" to defendant's actions, "second injury"
•(v) diseases caused by or exacerbated a weakened condition resulting from initial injury,
•(vi) subsequent accident substantially caused by the original injury. "second injury"
question
Intervening Causes
answer
•b) Intervening Forces: some causes are legally not considered foreseeable per se and may, stress "may", cut off responsibility.
•(i) negligent acts of third persons,
•(ii) crimes and intentional torts of third persons, and
•(iii) "acts of non-human origin".
•(i) negligent acts of third persons,
•(ii) crimes and intentional torts of third persons, and
•(iii) "acts of non-human origin".
question
Egg Shell Plaintiff Rule
answer
•"If the defendant is responsible for injuring a victim, courts will generally hold the defendant responsible for even highly unusual medical complications that result because the victim is extremely frail or otherwise vulnerable.
•If the plaintiff's egg-shell skull splatters instead of merely suffering a scratch like a normal skull as a result of a minor impact, the defendant is nevertheless still held as the 'proximate cause' of the catastrophic injury."
•Ex: If a store's negligence causes an older woman to slip and fall and she breaks her hip, the store can be held liable for the break--even though another person would have only gotten a bruise.
•However, the amount of damages may be adjusted based on the plaintiff's preexisting condition.
•If the plaintiff's egg-shell skull splatters instead of merely suffering a scratch like a normal skull as a result of a minor impact, the defendant is nevertheless still held as the 'proximate cause' of the catastrophic injury."
•Ex: If a store's negligence causes an older woman to slip and fall and she breaks her hip, the store can be held liable for the break--even though another person would have only gotten a bruise.
•However, the amount of damages may be adjusted based on the plaintiff's preexisting condition.
question
Non pecuniary damages
answer
- pain and suffering, loss of enjoyment of life, loss of consortium
question
defenses to negligence
answer
1. Contributory Negligence
2. Comparative Negligence
3. Assumption of Risk
4. immunities
2. Comparative Negligence
3. Assumption of Risk
4. immunities
question
Contributory Negligence - Defense
answer
•A plaintiff who is contributorily negligent is barred from all recover-even if he has established that the defendant was negligent
•Generally results from "voluntary exposure to the danger arising from defendant's negligence" or failing to follow reasonable person standard of care.
•Generally results from "voluntary exposure to the danger arising from defendant's negligence" or failing to follow reasonable person standard of care.
question
Comparative Negligence
answer
•AKA Comparative fault
•Works as a potentially partial defense
•Damages recovered based on portion of fault
•"[P]laintiff can be be 99% at fault and still recover 1% of the damages."
•Works as a potentially partial defense
•Damages recovered based on portion of fault
•"[P]laintiff can be be 99% at fault and still recover 1% of the damages."
question
Pure fault
answer
•P only recovers for the fault that D was responsible for
•Ex: If P is 80% at fault and D is 20% at fault, P recovers 20% of damages.
•Ex: If P is 80% at fault and D is 20% at fault, P recovers 20% of damages.
question
Equal Fault Bar
answer
•If P and D are equally at fault, P cannot recover
question
Greater fault bar
answer
•If P is at a greater % of fault, P cannot recover
question
Mark v. Pacific Gas and Electric
answer
•Calvin Mark was killed when he and his roommates tried to fix a light post outside his bedroom window. PG&E had previously been contacted to fix the problem, but the light still shone into the room.
•Was Mark contributorily negligent as a matter of law?
•Because PG&E had not responded to the requests to fix the light, the court concluded that a juror might come to the reasonable conclusion that it was not entirely unreasonable for Mark to act as he did. Therefore, it was a question of fact for the jury, and a judgment as a matter of law was inappropriate.
•Was Mark contributorily negligent as a matter of law?
•Because PG&E had not responded to the requests to fix the light, the court concluded that a juror might come to the reasonable conclusion that it was not entirely unreasonable for Mark to act as he did. Therefore, it was a question of fact for the jury, and a judgment as a matter of law was inappropriate.
question
Li v. Yellow Cab
answer
•Facts: Both Li and Phillips were driving negligently when Phillips struck Li, causing physical injuries and damage to Li's car.
•Issue: Should California apply the contributory negligence doctrine?
•The court decided "[t]he doctrine of comparative negligence is preferable to the 'all-or-nothing' doctrine of contributory negligence from the the point of view of logic, practical experience, and fundamental justice . . . ."
•Issue: Should California apply the contributory negligence doctrine?
•The court decided "[t]he doctrine of comparative negligence is preferable to the 'all-or-nothing' doctrine of contributory negligence from the the point of view of logic, practical experience, and fundamental justice . . . ."
question
Assumption of Risk
answer
•If you actually know and fully understand the risk of something and you willingly agree to do it or allow someone else to do it anyway, then you cannot win on a negligence claim.
question
Murphy v. Steeplechase Amusement Co.
answer
A plaintiff who knows about the risk of an activity and voluntarily participates may not recover if that risk comes to fruition
question
Rush v. Commercial Realty Co.
answer
•Mrs. Rush was a tenant of the defendant. The defendant provided an outhouse. Mrs. Rush used the outhouse and fell through.
•Issue: Is assumption of risk a defense for negligence here?
•No, because Mrs. Rush had to use the restroom provided by her landlord. She was not required to go elsewhere.
•Issue: Is assumption of risk a defense for negligence here?
•No, because Mrs. Rush had to use the restroom provided by her landlord. She was not required to go elsewhere.
question
Knight v. Jewett
answer
•Plaintiff was injured by defendant during a game of touch football.
•Issue: Is the plaintiff barred from recovery under the assumption of risk doctrine?
•Primary assumption of risk:
•The defendant owes no duty to plaintiff and plaintiff cannot recover
•Secondary assumption of risk:
•The defendant owes a duty and the plaintiff is injured by defendant's breach of that duty. In these cases, courts may apply comparative fault.
•The court held that this was a case of primary assumption of risk and that the plaintiff's recovery was barred under the assumption of risk doctrine.
•Issue: Is the plaintiff barred from recovery under the assumption of risk doctrine?
•Primary assumption of risk:
•The defendant owes no duty to plaintiff and plaintiff cannot recover
•Secondary assumption of risk:
•The defendant owes a duty and the plaintiff is injured by defendant's breach of that duty. In these cases, courts may apply comparative fault.
•The court held that this was a case of primary assumption of risk and that the plaintiff's recovery was barred under the assumption of risk doctrine.
question
3 classic immunities
answer
•Family
•Charitable: No longer really relevant
•Governmental
•Charitable: No longer really relevant
•Governmental
question
Gibson v. Gibson
answer
•Unemancipated minor son sues for injury sustained while following his father's instructions.
•The court looked at whether or not to uphold the doctrine of parental immunity.
•Ended Parental Immunity, kept 2 exceptions:
•Exercises of parental authority over the child
•Exercises of ordinary parental discretion with respect to the provision of food, clothing, housing, medical, and dental services, and other care.
•The court looked at whether or not to uphold the doctrine of parental immunity.
•Ended Parental Immunity, kept 2 exceptions:
•Exercises of parental authority over the child
•Exercises of ordinary parental discretion with respect to the provision of food, clothing, housing, medical, and dental services, and other care.
question
charitable immunity
answer
•Historically, protected charitable organizations from being sued. The policy goal was to protect the good work that these organizations do.
•This has been abrogated in most states.
•This has been abrogated in most states.
question
Governmental immunity
answer
•Discretionary decisions = policy-making decisions
•Ministerial decisions = government implementation or execution of policies
•"Discretionary decisions are not subject to tort liability, because decisionmakers are more properly held accountable through electoral politics."
•Ministerial functions are subject to liability if performed negligently.
•Ministerial decisions = government implementation or execution of policies
•"Discretionary decisions are not subject to tort liability, because decisionmakers are more properly held accountable through electoral politics."
•Ministerial functions are subject to liability if performed negligently.
question
Tarasoff v. Regents of the University of California immunities
answer
•The court looked at whether the defendant therapist (who was publicly employed) was protected by government immunity.
•The court noted that the failure to warn Tatiana Tarasoff or others who could protect her was a ministerial decision and not protected by the governmental immunity.
•The court noted that the failure to warn Tatiana Tarasoff or others who could protect her was a ministerial decision and not protected by the governmental immunity.
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