BP final

Duty - how much owed (Occupiers of Land (defendants land)) INVITEE (open to public/mutual benefit)

(1) Activities: Owed duty of reasonable care (2) Conditions: owed duty of reasonable care from all known traps on land (a) concealed from invitee; non obvious danger (b)owner knows in advance OR (c) Owner could discover with reasonable inspection

A 12-year-old snowboarder at a ski resort lost control while he was going down a slope and collided with a middle-aged skier who was ahead of him. The collision caused the skier to fall hard and sustain multiple fractures of her leg. The injuries required surgery and several months of rehabilitation before the skier could walk again. If the skier prevails in a personal injury action against the snowboarder, what is the most likely reason?

(C) A 12-year-old of like education, intelligence, and experience would have avoided the accident in the exercise of reasonable care.

A state child safety statute required children under eight years of age to be in a governmentapproved car seat when riding in a motor vehicle. A father was driving to a ballgame with his sevenyear-old child, who was buckled in the back seat with a regular seat belt. The father did not notice when the child unbuckled himself and started climbing into the front seat. The child grabbed the steering wheel "to help daddy steer," causing the car to swerve into the other lane and collide with another motorist's car. The motorist was seriously injured from the collision; the father and his child were unhurt. The motorist sued the father to recover damages for her injuries. At trial, the motorist presented evidence of the statute, her injuries, and the facts stated above. At the conclusion of the proofs, both parties moved for a directed verdict. How should the trial judge proceed?

(D) Deny both motions and submit the case to the jury, because the jury could find that the father breached his duty of care owed to the motorist.

Statutory - Negligence Per Se

(a) Borrow the statute that D violated to establish the duty and breach (b) P must be in the class of person protected by the statute (c) Injury must be in the class of risks sought to be avoided by the statute (d) Still must prove causation and damage

A hairdresser employed by a salon left hair dye on a client's scalp for too long, causing severe burns. When the burns were discovered, the hairdresser said to the client, "I'm sorry, I was distracted and didn't realize how much time had passed. Don't worry, the salon will make this right." The salon had not authorized the hairdresser to make that statement. The salon fired the hairdresser the following day, and the hairdresser disappeared. The client files a personal injury lawsuit against the salon. The client now seeks to testify as to what the hairdresser said at the time of her injury. Is the client's testimony admissible? (A) Yes, as a statement attributable to an opposing party. (B) Yes, as an excited utterance. (C) No, because the hairdresser is no longer employed by the salon. (D) No, because the salon had not authorized the hairdresser to speak on its behalf.

A The evidence is admissible. This question raises the issue of whether an employee's out-of-court statement will be attributed to the employer, and thus considered a vicarious opposing party's statement. The statement can be attributed to the employer, provided (i) it was made while the person was employed by the employer (not before or after the period of employment) and (ii) the statement related to the employment. Thus (A) is correct.

Hearsay Exemption Admission of Party Opponent 4. Co-Conspirator

A co-conspirator statement is admissible against the other co-conspirator when the statement was made by the co-conspirator, in furtherance of the conspiracy and made during the conspiracy.

A plaintiff sued a defendant for copyright infringement for using in the defendant's book some slightly disguised house plans on which the plaintiff held the copyright. The plaintiff is prepared to testify that he heard the defendant's executive copyright assistant say that the defendant had obtained an advance copy of the plans from the plaintiff's office manager. The plaintiff's testimony is (A) admissible as reporting a statement of an employee of a party-opponent. (B) admissible as a statement of a co-conspirator. (C) inadmissible, because it is hearsay not within any exception. (D) inadmissible, because there is no showing that the assistant was authorized to speak for the defendant.

A is correct. The statement by the executive assistant is admissible as a vicarious admission by a party-opponent against the defendant because the assistant was acting in the scope of employment, during the existence of the employment relationship.

Hearsay Exemption Admission of Party Opponent 1. Party Statement

A party statement or admission does not have to be against a party's interest; it only has to be said by a party and offered by the opposing party. In addition to party's direct statements, the exemption covers adopted admissions and statements by agents, employees and co-conspirators.

Negligence per se

A theory that may be used when the conduct of the person being sued is alleged to have occurred in clear violation of a statute.

NON-HEARSAY Party Statements

Adopted ADmissions Employee Statements Agent Statements Co-conspirator statements: BID If non of above, and statement offered for TRUTH, it is HEARSAY and INDADMISSBLE UNLESS MEETS AN EXCEPTION (where availability doesnt matter) (7 exceptions)

Hearsay Exemption Witness Statement

An out of court witness statement is admissible if the witness is currently in the courtroom subject to cross examination and the statement is either a (1) prior inconsistent statement; (2) consistent statement or (3) statement of identification.

A man and his friend were charged with burglary of a warehouse. They were tried separately. At the man's trial, the friend testified that he saw the man commit the burglary. While the friend was still subject to recall as a witness, the man calls the friend's cellmate to testify that the friend said, "I broke into the warehouse alone because [the man] was too drunk to help." The evidence of the friend's statement is (A) admissible, as a declaration against penal interest. (B) admissible, as a prior inconsistent statement. (C) inadmissible, because it is hearsay not within any exception. (D) inadmissible, because the statement is not clearly corroborated.

B The friend's statement to his cellmate is a prior inconsistent statement to the friend's earlier testimony that he saw the man commit the burglary. Therefore, the cellmate's testimony regarding the friend's out-of-court statement is admissible to impeach the friend's earlier in-court testimony. As a foundational matter, the friend must be given an opportunity to explain or deny the allegedly inconsistent statement, but this can occur after the cellmate testifies.

A landlord employed his friend as the on-site manager of one of his apartment buildings despite being aware that he had previously been arrested for criminal battery, disorderly conduct, and driving while intoxicated. The manager did a good job dealing with the general maintenance of the apartment building, although the landlord was aware that he continued to drink heavily. One night the manager, who was extremely intoxicated, attempted to swat an insect on the ceiling of his apartment and could not do so after several attempts. Enraged, he took a pistol from his drawer and shot at the insect. The bullet missed the insect and passed through the ceiling of his apartment into the apartment above, lodging in the leg of a tenant's social guest. Does the guest have a viable cause of action against the landlord? A.Yes, because the guest had been invited onto the property by the tenant. B.Yes, because the landlord was aware of the manager's habitual drunkenness and propensity for violence. C.No, because the landlord cannot be held liable for the manager's intentional torts. D.No, because shooting an insect was outside the scope of the manager's employment.

B&C B. Yes, because the landlord was aware of the manager's habitual drunkenness and propensity for violence. Because the landlord knew about the manager's continued heavy drinking and tendencies toward violence, the guest has a cause of action for negligence in the landlord's hiring of the manager. An employer owes a duty to all those who may foreseeably come into contact with his employee to exercise due care in the hiring, supervision, and retention of the employee, and the landlord's retention of the manager under these circumstances may be a breach of that duty. C. No, because the landlord cannot be held liable for the manager's intentional torts. An employer can be held directly liable for the intentional tort of an employee if it was foreseeable and the employer was negligent in hiring or retaining the employee.

In response to the latest energy crisis, an oil company began testing a new method of extracting oil from certain types of subsurface rock. The process used concentrated sound waves to pulverize the rock and draw out the oil. The tests, conducted in a sparsely populated area, caused heavy vibrations in the ground and the slumping of subsurface earth structures surrounding the test site. This led to the collapse of a water well on a rancher's property. If the rancher brings a negligence action against the oil company, which of the following would be most helpful to the oil company in avoiding liability? (A) The subsurface earth structures that collapsed as a result of the tests were unstable before the tests took place. (B) The rancher's property is located at such a far distance from the test site that no risk to the rancher was foreseeable. (C) The oil company exercised due care in selecting the personnel who chose the test site and conducted the tests. (D) The oil company built its test site and conducted the tests in conformity with safety procedures and standards used by all other companies engaged in similar tests.

B. The distance from the test site to the rancher's property is most helpful to the oil company. Where an action is based on negligence, the plaintiff is alleging that the defendant has breached its duty of acting as an ordinary, prudent, reasonable person, and that such breach has actually and proximately caused injury to the plaintiff. No duty is imposed upon a person to take precautions against events that cannot reasonably be foreseen. Thus, if at the time of the defendant's conduct, no foreseeable risk of injury to a person in the position of the plaintiff is created by the defendant's act, the general duty of care does not extend from the defendant to the plaintiff. If (as (B) states) the rancher's property is located so far from the test site that no risk to the rancher was foreseeable, then there would be no duty imposed upon the oil company to take precautions against the damage to the rancher's property. Thus, the general duty of reasonable care would not extend from the oil company to the rancher with respect to the oil company's testing operations. Absent such a duty, there can be no liability for negligence.

At an intersection, a motorist's car struck the car of a mother who was driving her teenage son to school. The mother was killed in the collision. The mother's estate brought a wrongful death action against the motorist on behalf of the mother's son and daughter, her sole heirs. At trial, evidence introduced by the estate established that the motorist drove through a red light at the intersection. Evidence introduced by the motorist showed that the son was showing his mother a video on his phone just before the collision occurred. May the evidence introduced by the motorist be used against the estate? (A) Yes, to show only that the mother was contributorily negligent. (B) Yes, to show that both the mother and the son were contributorily negligent. (C) No, because a parent's contributory negligence is not imputed to her children. (D) No, because the mother's inattentive driving was a foreseeable intervening force and does not cut off the motorist's liability.

B. The evidence may be used against the estate to show that both the mother and the son were contributorily negligent. In a wrongful death action, recovery is allowed only to the extent that the deceased could have recovered in the action had she lived. Had the mother lived, her recovery likely would have been barred or reduced because of her contributory negligence. The estate's recovery of damages will be similarly impacted. (A) is incorrect because the evidence also may be used against the estate to show that the son was contributorily negligent. While defenses against potential beneficiaries did not bar a wrongful death action under traditional rules, a contributorily negligent beneficiary would recover nothing. In most comparative negligence jurisdictions, the negligent beneficiary's recovery would be reduced by his fault, reducing the overall award granted to the estate. Hence, the evidence may be used to show that the son also was contributorily negligent.

A homeowner called a tree trimmer to his house to trim some branches on a large pine tree in the homeowner's backyard. The tree trimmer trimmed off several large branches and pruned several others. The homeowner paid the tree trimmer, who left and did not return. A week after the tree trimmer trimmed the tree, one of the pruned branches split from the trunk of the tree and landed on a neighbor's car. If the neighbor brings suit against the tree trimmer for damage to his car, what is the best defense for the tree trimmer? A.He was relieved of liability when the homeowner paid for the tree trimming. B.He could not reasonably foresee that the branch would split off and fall. C.He did all the work under the direction of the homeowner. D.The pine tree was on the property of the homeowner.

B. He could not reasonably foresee that the branch would split off and fall. If the tree trimmer could not reasonably foresee that the tree branch would fall, then he was not negligent. No duty is imposed on a person to take precautions against events that cannot reasonably be foreseen. Therefore, if at the time of the negligent conduct, no foreseeable risk of injury to a person in the position of the plaintiff is created by the defendant's act, the general duty of care does not extend from the defendant to the plaintiff.

A boy mowing his lawn noticed a strong vibration from the engine but continued to mow. The engine housing suddenly broke apart and pieces flew off the lawnmower. One piece struck the boy in the head, seriously injuring him. The boy's mother was inside the house and heard yelling from the backyard. She went to the window and saw her son lying on the ground by the lawnmower and a friend of his kneeling over him. She became very upset and fainted. Subsequent investigation showed that a negligent repair by a local mechanic caused the engine housing to shatter. The mother brought a lawsuit against the mechanic, seeking recovery for her son's injury and the emotional distress she suffered. Can the mother recover damages for her emotional distress? (A) No, because her son's continuing to mow after noticing the vibration was a superseding cause of the harm. (B) No, because the mother was not within the zone of danger from the mechanic's negligence. (C) Yes, because the mother was closely related to someone in the zone of danger from the mechanic's negligence. (D) Yes, because her son was injured by the mechanic's negligence.

B. The mother cannot recover damages for her emotional distress. A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The mother might try to assert two theories in support of her emotional distress claim, but she is unlikely to prevail on either one. First, she could claim distress flowing from fear for her own safety, but she may prevail only if the defendant's negligence placed her in a zone of danger. Here, because she was safely inside her home and quite distant from the mower when it exploded, she was not in a zone of danger. Alternatively, she could claim distress flowing from her anguish at seeing her son injured. However, for a bystander who is outside the zone of danger from the risk of physical injury but who suffers emotional distress from seeing the defendant negligently injure another, most states allow recovery only if: (i) the plaintiff and the person injured by the defendant are closely related; (ii) the plaintiff was present at the scene of the injury; and (iii) the plaintiff personally observed or perceived the event. Here, while she is related to her son, who was injured by the mechanic's negligence, she was not present at the scene of the injury and did not personally observe or perceive the event. Hence, she cannot recover damages for negligent infliction of emotional distress

A defendant is on trial in federal court for bank robbery. Before the police had any suspects, a police officer interviewed an eyewitness at the police station and showed her a "mug book" containing dozens of photographs. The eyewitness identified the defendant's photograph as that of the robber. At trial, the eyewitness surprises the prosecutor by testifying that she is unable to identify the defendant as the robber. The prosecutor calls the officer to testify that the eyewitness identified the defendant from the photograph in the police station. The eyewitness remains present in the courthouse and can be recalled. Is the officer's testimony admissible? (A) No, because the eyewitness was unable to identify the defendant at trial. (B) No, because the eyewitness's testimony has disappointed the prosecutor but has not affirmatively harmed the prosecution's case. (C) Yes, because the eyewitness's statement of identification as reported by the officer is not excluded by the hearsay rule. (D) Yes, because the hearsay rule does not exclude out-of-court statements if a declarant testifies and is available for cross- examination.

C The officer's testimony regarding the eyewitness's prior identification of the defendant is admissible as non-hearsay under Federal Rule of Evidence (FRE) 801(d)(1)(C), allowing prior statements of identification.

A pilot was flying his airplane, which he always kept well maintained. Due to a flock of birds that suddenly got in his way, the pilot was forced to seek an emergency landing area and glided toward a field where children were playing. As the pilot made his landing, he was unable to avoid striking and injuring one child. If the parents of the child bring an action against the pilot to recover for the child's personal injuries, what is the pilot's best defense? (A) He did not act willfully and wantonly. (B) He could not reasonably foresee that he would have to make an emergency landing. (C) He used reasonable care in the maintenance of his airplane. (D) His conduct was not the cause of the injury to the child.

C The pilot's best defense is that he was not negligent, because he used reasonable care and caution in the maintenance of his airplane. To recover in a negligence action, the parents would have to establish duty, breach of duty, actual and proximate causation, and damages. Here, the pilot's exercise of reasonable care in maintaining the airplane rebuts a claim of breach of duty on his part.

A cyclist sued a defendant corporation for injuries sustained when she was hit by a truck owned by the defendant and driven by its employee, who was making deliveries for the defendant. The day after the accident, the employee visited the cyclist in the hospital and said, "I'm sorry for what I did." At trial, the employee has testified that he exercised due care. Why is the cyclist's testimony relating what the defendant's employee said at the hospital admissible to prove negligence? (A) It is a prior inconsistent statement. (B) It is a statement against interest. (C) It is a statement by a party-opponent's agent. (D) It is a statement of then-existing state of mind.

C is correct. Federal Rule of Evidence (FRE) 801(d)(2)(D) allows the employee's statement to be substantively admissible as a non-hearsay admission by an agent of a party-opponent because it was regarding a matter within the scope of employment, during the existence of the employment relationship.

A defendant is on trial for knowing possession of a stolen television. The defendant claims that the television was a gift from a friend, who has disappeared. The defendant seeks to testify that he was present when the friend told her neighbor that the television had been given to the friend by her mother. Is the defendant's testimony about the friend's statement to the neighbor admissible? (A) No, because the friend's statement is hearsay not within any exception. (B) No, because the defendant has not presented evidence of circumstances that clearly corroborate the statement. (C) Yes, as nonhearsay evidence of the defendant's belief that the friend owned the television. (D) Yes, under the hearsay exception for statements affecting an interest in property.

C is correct. The friend's statement is exempted as non-hearsay because it is being offered to show that the defendant believed or had knowledge that the friend rightfully owned the television, which is relevant to whether the defendant knowingly has possession of a stolen television. The statement itself (that the television was a gift from the friend's mother) need not be true, but rather, it is being used only to show the effect on the defendant/listener.

A woman took her car in for scheduled maintenance. The mechanic certified that the car was in perfect working order. Later that day, the woman was driving beyond the posted speed limit when her brakes failed, causing her car to strike a pedestrian. If the pedestrian brings an action against the mechanic who certified the woman's car as operable, what will be the probable outcome? A.Judgment for the mechanic, because the pedestrian was legally a bystander. B.Judgment for the mechanic, because the woman's negligence was an independent, superseding cause. C.Judgment for the pedestrian, if the mechanic was negligent in inspecting the car. D.Judgment for the pedestrian, because the mechanic was strictly liable in tort.

C. .Judgment for the pedestrian, if the mechanic was negligent in inspecting the car. The pedestrian will prevail if the mechanic was negligent in inspecting and certifying the car. Because the brakes failed soon after the mechanic certified the car, it is highly likely that the mechanic was negligent. NO Strict liability

A 15-year-old took the keys to the family car, which was parked on the street in front of the house, and began driving. He turned right at the first intersection, swinging a little bit wide as he turned. A motorist coming down the street from the opposite direction swerved his auto to the right because he feared a collision. He lost control of the auto and struck a tree in a landowner's front yard. As the motorist staggered out of his auto, dazed but otherwise unhurt, he tripped over some decorative boulders that the landowner had placed in his yard and fell, breaking his wrist as he landed. The motorist brought an action against the 15-year-old for personal injuries and established the above facts. At the close of the motorist's case, the attorney for the 15-year-old moves for a directed verdict. How should the court rule on the directed verdict motion? A.Grant the motion, because the motorist has failed to establish a prima facie case. B.Grant the motion, because the motorist's fear of an imminent harmful contact with the 15-year-old's car was unreasonable. C.Deny the motion, because the jury could find that the 15-year-old has not acted as a reasonably prudent person would have acted in similar circumstances. D.Deny the motion, because the jury could find that the 15-year-old has not acted as a reasonably prudent child of similar age and experience would have acted in similar circumstances.

C. Deny the motion, because the jury could find that the 15-year-old has not acted as a reasonably prudent person would have acted in similar circumstances. The court will deny the motion because the trier of fact could find that the 15-year-old acted negligently under the circumstances. The general rule is that the actions of a child are measured by the standard of a reasonably prudent child of similar age, intelligence, and experience. This rule does not apply where the child engages in a potentially dangerous activity that is normally one in which only adults engage. The driving of an automobile is an adult activity, and so the 15-year-old will be held to an adult standard of care. It is up to the trier of fact to determine whether the 15-year-old has satisfied the standard of the reasonably prudent adult, so (C) is therefore correct.

Defense to negligence - contributory negligence

COMPLETE BAR

Character Evidence Civil Excpetions

Character at issue MIMIC Habit

DEFENSES TO NEGLIGENCE

Comparative negligence contributory negligence Secondary assumption of risk (affirmative defense)

Duty - how much owed (exceptions)

Consider defendant's superior knowledge of a fact and defendant's relevant physical attributes If D has superior knowledge, standard is RPP with that knowlege D's relevant physical attributes are considered

Defenses to negligence

Contributory Negligence Comparative Negligence Assumption of risk

On the way home from a nightclub, a passenger began yelling at the designated driver claiming that he was not taking the best route back to her house. The driver disagreed and contended that his route was the quickest. The passenger impulsively grabbed the steering wheel, causing the car to swerve and strike a pedestrian, injuring him. At trial, the pedestrian established that the driver's license had expired the day before the accident. The driver's traffic record qualified him for an automatic renewal of his driver's license, but he had forgotten to submit it in time. A statute in the jurisdiction makes it an offense to drive a vehicle on any public road in the state without a valid driver's license. Will the pedestrian prevail? (A) Yes, because the driver violated a statute by driving without a valid license. (B) Yes, because the driver failed to control his passenger. (C) No, because the driver did not start the argument. (D) No, because the passenger's action was the proximate cause of the injury.

D The pedestrian will not prevail because the passenger's grabbing of the wheel is the negligent conduct that caused the pedestrian's injuries. To establish a prima facie case for negligence, the following elements must be proved: (i) the existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (ii) breach of that duty by the defendant; (iii) the breach of the duty by defendant was the actual and proximate cause of plaintiff's injury; and (iv) damage to plaintiff's person or property. Here, the driver's actions were an actual cause of the pedestrian's injury because, but for the driver's driving and the passenger's grabbing the steering wheel, the injury to the pedestrian would not have happened. However, the driver's actions were not a proximate cause of the injury because the passenger's grabbing of the steering wheel was a superseding intervening force. A superseding force is one that serves to break the causal connection between the initial wrongful act and the ultimate injury, and itself becomes a direct immediate cause of such injury. Thus, the first actor would be relieved of liability from the consequences of his antecedent conduct. The passenger's conduct in suddenly grabbing the steering wheel was an unforeseeable intervening force creating an unforeseeable harmful result, and thus constituted a superseding force.

A wealthy philanthropist designed and constructed a playground for children and dedicated the property to the city to be used as a public park. One day, while playing at the park, a 10-year-old boy fell off the monkey bars and broke his leg. The boy's parents filed a suit on his behalf against the philanthropist and the city, on the grounds of negligence in the design of the monkey bars. At the trial, the philanthropist was granted a directed verdict, because the city now owns the park. The boy's parents appealed. How will the appellate court most likely hold? (A) The decision to grant the directed verdict should be upheld, because the philanthropist was relieved of liability when he dedicated the park to the city. (B) The decision to grant the directed verdict should be upheld, because the philanthropist designed and constructed the park in the public interest. (C) The decision to grant the directed verdict should be overturned if the plaintiffs introduced evidence that the philanthropist dedicated the park to the city in an effort to avoid liability for the park's negligent design. (D) The decision to grant the directed verdict should be overturned, because the philanthropist's liability for negligence was not affected by the dedication of the park to the city.

D The trial court's decision should be overturned because the city's ownership of the park does not cut off the philanthropist's liability for negligent design of the playground equipment. The prevailing rule is that in performing services of designing and constructing improvements on property eventually deeded to the city, a developer must accept responsibility for prededication negligence. Hence, the trier of fact should be permitted to consider evidence of the philanthropist's negligence. To hold otherwise would allow the developer to avoid liability merely by dedicating the grounds to a city

At a woman's trial for bank robbery, the prosecutor has called a private security guard for the bank who has testified, without objection, that while he was on a coffee break, the woman's brother rushed up to him and said, "Come quickly! My sister is robbing the bank!" The woman now seeks to call a witness to testify that the brother later told the witness, "I got my sister into trouble by telling a security guard that she was robbing the bank, but now I realize I was mistaken." The brother is unavailable to testify. Is the witness's testimony admissible? (A) No, because the brother will be afforded no opportunity to explain or deny the later statement. (B) No, because the prosecutor will be afforded no opportunity to confront the brother. (C) Yes, because it is substantive proof that the woman did not rob the bank. (D) Yes, but only as an inconsistent statement to impeach the brother's credibility.

D When a hearsay declarant is not present at trial, Federal Rule of Evidence (FRE) 806 allows for impeachment of that declarant, even without an opportunity to explain or deny it, by a prior inconsistent statement.

When a diner began choking on a piece of shrimp, a waitress rushed to the diner's assistance. Before she could reach the diner, the waitress slipped on some pudding that a busboy had failed to remove from the floor. The waitress fell on top of another restaurant patron, injuring him. If the injured patron sues the waitress for his injuries, can he recover? (A) Yes, because the waitress had no duty to rescue. (B) Yes, because the waitress assumed the risk. (C) No, because the touching was unintentional. (D) No, but he may recover against the restaurant.

D. The waitress is not liable because there is no indication of any fault on her part in injuring the patron. However, the patron may recover against the restaurant because it is vicariously liable for the negligence of the busboy in failing to remove the pudding. The waitress fell on top of the patron because she slipped on the pudding. Slipping and falling were not volitional acts by the waitress, so it cannot be said that she acted with the intent to bring about any harm to the patron, or that she knew with substantial certainty that such harm would occur. In addition, the facts do not indicate that the slip and fall occurred because the waitress was not exercising ordinary, reasonable care. In her rush to assist a restaurant patron in distress, the waitress inadvertently stepped on a slippery substance, the presence of which she had no reason to know. Thus, she did not act negligently. Because the waitress's conduct was neither intentional nor negligent, she is without fault in the infliction of injury to the patron. Consequently, she will not be held liable for the injury. However, the busboy who failed to removethepuddingfromthefloordidactnegligently.Thebusboyowedadutytorestaurantpatronstoactasan ordinary, reasonable person for the protection of the patrons against an unreasonable risk of injury. By leaving the pudding on the floor, the busboy created an unreasonable risk that a patron would be injured either by directly falling or by being near someone else who fell. Thus, the busboy breached his duty of due care. This breach, which caused the waitress to fall on the patron, actually and proximately caused physical injury to the patron, who was a foreseeable plaintiff. This negligence on the part of the busboy was committed within the scope of his employment relationship with the restaurant. Under the doctrine of respondeat superior, the restaurant is vicariously liable for this tortious act of its employee. Thus, (D) correctly states that the waitress is not liable, but the restaurant is liable

A young boy was hospitalized after he accidentally swallowed a coin while playing. The boy recovered, but his mother began suffering feelings of anxiety, worrying that her child might be injured again. The mother went to a movie to relax and ordered some popcorn. While handling her change, the concession stand attendant carelessly dropped a quarter into the popcorn, which the mother did not notice until she bit the quarter. She did not swallow the quarter, nor did she bite on it hard enough to injure her teeth or gums, but the feel of the coin brought back all her anxieties about the boy's injury. The mother sued the movie theater for her emotional distress. If the jury finds that a reasonable person would not have suffered similar distress under the circumstances, is the mother likely to prevail? A.Yes, because the concession stand attendant was negligent. B.Yes, because she suffered emotional distress. C.No, because a reasonable person would not have suffered similar distress under the circumstances. D.No, because she suffered no actionable harm.

D.No, because she suffered no actionable harm. The mother will lose because she will not be able to establish a prima facie case for negligent infliction of emotional distress. An action for negligent infliction of emotional distress requires the plaintiff to show that the defendant's conduct created a foreseeable risk of physical injury to the plaintiff, such as by threat of physical impact, and, in the usual case, that the emotional distress caused by this conduct also manifests itself in physical symptoms.

Character Evidence Criminal Excpetions

Defendant opens door Reputation/Opinion on PERTINENT character trait Pros. may respond by asking "Did you know X did bad acts? P may bring on Rep and Op witnesses on PERITNENT character trait NO EXTRINSIC EVI!!!!! i.e., testifying to bad acts; CAN ONLY INQUIRE ON CROSS.

Duty - to whom owed

Foreseeable victims Unforeseeable victims ALWAYS LOSE Exception: rescuers that come to remedy defendant's carelessness become foreseeable

Duty - how much owed (generally)

General: reasonably prudent person under the circumstances, objective standard, does not consider anything about defendant

Proximate Cause

Harm must be foreseeable. Ask if engaging in whatever action D did to breach duty, was the harm that resulted foreseeable? Weirder harm >> less likely to be causation (meteor hitting truck) Call of question: whether 1 or both parties are entitled to SJ (deny if any issue of foreseeability for jury) OR facts will be clear cut that common sense will tell you whether harm, was foreseeable.

Actual Cause

If testing Causation - HAVE TO SAY THAT ACCIDENT WOULD HAVE OCCURRED EVEN ABSENT BREACH

Character Evidence Generally

Inadmissible

IMPEACHMENT

LOOK FOR CROSS X Bias Prior Incons Statement Felony conv under 10 years Misd Conviction relating to truth Bad acts re truth telling ---with character, can only inquire into on cross. Sensory perception

Hearsay Exemption Admission of Party Opponent

Party statements are admissible if into evidence by the opposing party.

Hearsay Exemption Witness Statement Consistent Statements

This consistent statement does not have to be under oath and will be used to rehabilitate the witness's trial testimony.

Duty - how much owed (Occupiers of Land (defendants land)) LICENSEE

(1)Activities: owed duty of reasonable care (2)Conditions: owed duty of reasonable care for KNOWN TRAPS (a) occupier knows (b) Licensee unlikely to discover (3) firefighters and officers may NEVER Recover from injury inherent in job

A nervous man was persuaded by his girlfriend to go with her to a haunted house. He saw the signs in front of the haunted house warning that this attraction has live "monsters" who will be trying to scare people and is not for the faint of heart, and he also noticed the same warning printed on the tickets. He paid for his ticket and reluctantly went into the darkened house with his girlfriend. In the first room, an actor dressed as a large monster came at them with a shriek, and the man dove through one of the plate glass windows to the outside, severely lacerating his arms and face in the process. If the man brings an action against the actor, will he recover? (A) No, because the man expressly assumed the risk of injury. (B) No, unless the jury determines that the actor was negligent in trying to scare the man. (C) Yes, because the actor intended to cause apprehension on the part of the man. (D) Yes, but the man's recovery will be reduced by a certain percentage if the trier of fact determines that he was also at fault.

(A) No, because the man expressly assumed the risk of injury. The man will not recover damages from the actor because the man's express assumption of risk is a complete defense. A plaintiff in a negligence action may be denied recovery if he assumed the risk of any damage caused by defendant's acts. The risk may be assumed by express agreement. Exculpatory language in a consensual agreement between the parties that is intended to insulate one of the parties from liability resulting from his own negligence is closely scrutinized but generally enforceable as long as it is not an adhesion contract situation (i.e., a situation where one party essentially had no choice but to accept the terms set by the other party). Here, the risks were clearly stated on the signs and on the ticket, and the man was aware of them when he purchased the ticket. Because an entertainment rather than a necessity was involved, it was not an adhesion contract—the man was free to decline to enter the haunted house. Even in comparative negligence jurisdictions, express assumption of risk is a complete defense. Thus, the man will not recover damages from the actor

The superintendent of a waste management company that operated a landfill noted that some children who lived in a nearby residential development had taken to sledding down the snow-covered mounds of dirt that were piled on the site. A construction company needing dirt fill for a highway project had offered to remove the mounds of dirt at minimal cost but the superintendent had not yet arranged for their removal. In the meantime he posted numerous signs around the landfill site that stated in bold letters, "NO TRESPASSING—NO SLEDDING." Despite the signs, which he saw and read, a 10-year-old neighborhood child sledded down one of the mounds of dirt and was propelled onto a busy highway adjacent to the landfill, where he was struck by a car and seriously injured. Is the waste management company liable for the child's injuries?

(A) Yes, because the company could have had the piles of dirt removed at minimal cost.

After enjoying a wonderful meal in a restaurant, a diner went into the kitchen through a door marked "employees only" to personally compliment the chef. However, before he could get the attention of the chef, he slipped on a puddle of bright yellow grease that had congealed on the floor by the stove. He fell, hitting his head and sustaining a severe head injury. If the diner sues the restaurant for damages in a jurisdiction following the traditional rules for landowners and possessors of land, is he likely to recover?

(C) No, because patrons were not allowed in the kitchen.

The owner of a valuable painting hired professional movers to transport it to an auction house when she decided to sell it. As the movers were carrying it to their van, a window air conditioner that a tenant had been trying to install fell out of his second floor window and crashed through the painting and onto the ground. The owner had been watching from across the street and saw her painting destroyed. She became extremely upset and needed medical treatment for shock. If the owner brings a claim for negligent infliction of emotional distress against the tenant, is she likely to recover?

(C) No, because she was not within the zone of danger.

A motorist driving home one night on a desolate two-lane road stopped when he saw a person lying on the road next to a bicycle. The cyclist had slipped and fallen off his bicycle, and was knocked unconscious when he hit his head on the pavement. Not wishing to get involved and seeing that no one else was around, the motorist got back into his car and drove away without making any effort to help the cyclist, even though he had a cell phone with which he could have summoned aid. The cyclist remained lying in the same place and was later struck by another car. If the cyclist brings suit against the motorist for injuries suffered when he was struck by the other car, will the cyclist prevail?

(C) No, because the motorist was not responsible for causing the cyclist to be lying by the side of the road.

In a state that imposed a maximum speed limit of 65 m.p.h. by statute, a truck driver was going 75 m.p.h. on a stretch of highway when a car pulled in front of her. The truck driver was unable to stop in time and hit the car, pushing it into the next lane where it was struck by a bus traveling the speed limit. The collision with the bus caused serious injury to the driver of the car. In an action against the truck driver for negligence, uncontroverted evidence was introduced that, even if the truck driver had been going 65 m.p.h., she would have struck the car and pushed it into the path of the bus. Is the driver of the car likely to prevail?

(D) No, because the violation of the speed law was not a cause in fact of the harm.

NIED

(a) Causing fright for one's own safety (i) D's negligence exposed P to physical harm but missed ("near miss case") (ii) Subsequent physical manifestations from the distress (i.e., heart attack) (iii) Physical impact not needed (b) Grief or anxiety over injury caused to another (i) Bystander present (ii) Victim is close family member

Affirmative Duty to Act

(a) No duty to affirmatively act (b) No duty to rescue strangers (c) Exceptions (i) D causes P's peril (ii) preexisting relationship between the parties 1. family 2. common carrier and innkeeper 3. invitees (iii) Once you undertake the rescue, must finish the rescue

Duty - how much owed (Occupiers of Land (defendants land)) Discovered/anticipated trespasser

(a)How did entrant get hurt? --by Defendant's conduct of activities on property --by encounter with hazardous condition of defendant's property (b) (1)Activities: owed duty of reasonable care (2) Conditions: owed duty of reasonable care if known, manmade death trap on the land ---Artificial Condition ---Highly dangerous ---Concealed from trespasser (3) Occupier had advanced knowledge of condition (4) EXCEPTION: Attractive nuisance ---Owner AWARE of dangerous condition ---Children foreseeable ---Risk unreasonable ---Min. burden on D to fix ---Child cannot appreciate risk

Duty - how much owed (Occupiers of Land (defendants land)) Undiscovered trespasser

(a)How did entrant get hurt? --by Defendant's conduct of activities on property --by encounter with hazardous condition of defendant's property (b)NEVER owed duty of care under negligence theory Can sue under intentional tort theory

A petroleum company operated refineries in several states and was also engaged in the manufacture of a variety of petrochemical products. The company hired an industrial cleaning service to thoroughly clean one of its refineries. While one of the cleaning service's employees was engaged in routine cleaning activities at the refinery, one of the support legs on a crane suddenly gave way, causing part of the crane to fall onto a pipe carrying hot oil, cracking it open. The employee had his back to the pipe at the time and hot oil squirted over his back and legs, causing severe burns. The employee filed suit against the petroleum company for his injuries. The parties stipulated for trial that the crane had been designed and constructed by a crane construction specialist and was serviced at regular intervals by a reputable crane maintenance company selected by the crane construction company. The employee testified at the trial that he was injured when the pipe cracked open and submitted his medical bills and other evidence of damages. The employee introduced no further evidence. At the conclusion of the employee's case, the petroleum company moved for a directed verdict in its favor. Should the directed verdict be granted? (A) Yes, because the employee has done nothing to connect the petroleum company to any negligent activity that might have caused the accident. (B) Yes, because the petroleum company did not owe a duty to an employee of an independent contractor. (C) No, because the petroleum company is strictly liable to the employee for his injuries. (D) No, because a jury could reasonably conclude, based on the evidence presented by the employee, that the petroleum company was negligent.

A

A 14-year-old was the youngest licensed pilot in the state. On a foggy day when pilots were being advised to fly only if necessary, the pilot took his plane out so that he could fly low over the football field where his friends were practicing. When he attempted to land on his return to the airport, he ran off the runway due to the fog and damaged an executive's airplane, which was in the parking area. If the executive sues the pilot for damage to his airplane and prevails, what is the likely reason? (A) A reasonable pilot would not have flown that day. (B) A pilot with the same age, education, intelligence, and experience would not have flown that day. (C) It was not necessary for the pilot to fly that day. (D) The flying of a plane by a 14-year-old is an inherently dangerous activity, and the pilot is strictly liable for the damage.

A If the executive prevails, it will be because a reasonable pilot would not have flown that day. When the tortfeasor is a child, the applicable standard of care generally imposed by the courts in negligence actions is that of a child of like age, education, intelligence, and experience. This permits a subjective evaluation of these factors. However, when a child is engaged in a potentially dangerous activity that is normally one that only adults engage in, such as flying an airplane, most cases hold that he will be required to conform to the same standard of care as an adult in such an activity. Thus, if the executive prevails, it will be because the pilot did not conform to the standard of care of a reasonable adult pilot.

A utility company working underground installed a guardrail around its access hole for safety. Although the guardrail completely surrounded the hole, there was an opening in one part of the rail to make it easier to pass down tools to those working below. The owner of a show dog living across the street from the utility access hole frequently walked his dog in his front yard without a leash. One afternoon, the dog unexpectedly chased a squirrel out of the dog owner's yard and ran through the opening of the guardrail, falling into the open hole and suffering broken bones and internal injuries. Although expert veterinary care saved the dog's life, the dog was no longer of "show quality" after the injuries. The dog owner brought a negligence claim against the utility company to recover his economic losses resulting from the injuries to his dog. At trial, the dog owner presented the above facts. The utility company presented uncontested evidence that the guardrail used by the company meets typical industry standards, and that the opening in the guardrail was not large enough for a person to have fallen through. At the close of the evidence, the utility company moved for a directed verdict. What should the court do? (A) Deny the verdict, because the jury could find that the company failed to exercise reasonable care in making the dangerous condition safe. (B) Grant the verdict, because the guardrail used by the company meets typical industry standards. (C) Grant the verdict, because the owner's negligence claim does not support recovery of solely economic loss. (D) Grant the verdict, because a reasonably careful person would not have been injured in the same manner.

A The court should deny the motion, because the jury could find that the company did not exercise reasonable care. Although the extent of precautions necessary may not be as great when the defendant's conduct poses a risk of harm only to property and not to persons, the same general rules of negligence apply. Hence, the jury could find that the utility company's conduct created a risk of injury to property that it deems unreasonable (based on the magnitude of the risk and the utility of the conduct), so that it will incur liability even though it created little risk of injury to persons. If the company was negligent, the dog owner could recover any property damage caused by the negligence, including whatever decline in the dog's value he is able to prove

At an intersection of two busy streets, a motorcyclist failed to stop at a stop sign before entering the intersection. A truck driver who had the right of way saw the motorcycle crossing in front of him but was unable to stop because he had neglected to get his brakes repaired, even though he knew they were in poor condition. The two vehicles collided in the center of the intersection, injuring both parties. Immediately after that, a cabdriver who saw the accident decided to try to go around the vehicles, but she ended up colliding with both of them. All three parties were injured in the second collision. Each of the parties sues the other two in a jurisdiction that retains traditional contributory negligence rules. If the trier of fact finds that all three parties were at fault, which of the following is the most likely result? (A) The motorcyclist and the truck driver will be awarded damages against the cabdriver; no other damages will be awarded. (B) The motorcyclist will be awarded damages against the truck driver and the cabdriver; no other damages will be awarded. (C) The motorcyclist will be awarded damages against the truck driver and the cabdriver, and the truck driver will be awarded damages against the cabdriver; no other damages will be awarded. (D) None of the parties will be awarded damages against any of the other parties.

A The motorcyclist and the truck driver can recover damages against the cabdriver because she had the last clear chance to avoid the accident. In traditional contributory negligence jurisdictions, a plaintiff's contributory negligence completely bars his right to recover. However, under the doctrine of last clear chance, the person with the last clear chance to avoid an accident who fails to do so is liable to the other party for negligence despite that party's contributory negligence. Here, the motorcyclist and the truck driver were both negligent in the initial collision and were in a position of helpless peril. The cabdriver was negligent in deciding to try to go around the vehicles and then striking them. Because she had the last clear chance to avoid the accident and failed to do so, she is liable to both the motorcyclist and the truck driver for damages.

A landowner invited some friends, including his neighbor, to a party in his backyard. All the friends showed up, except for the neighbor. That evening, a guest produced and lit a large skyrocket. The skyrocket failed to climb properly and crashed into the neighbor's garage, burning the garage to the ground. A local ordinance made it a misdemeanor to sell fireworks within the city limits. If the neighbor sues the landowner for the damage to his garage in a jurisdiction that applies the traditional liability rules for landowners and possessors of land, on which theory is he most likely to prevail? (A) The landowner failed to exercise due care to control the acts of his guests. (B) The landowner is strictly liable for harm resulting from abnormally dangerous activities performed on his land. (C) Because he had been invited to the landowner's party, the neighbor, as an invitee, was owed by the landowner a duty to discover and guard against activities on his land involving an unreasonable risk of harm. (D) The landowner is liable on a negligence per se theory because of the local ordinance banning the sale of fireworks within the city.

A The neighbor's best theory is that the landowner negligently failed to control the conduct of his guests. A landowner has a duty to exercise reasonable care with respect to his own activities on the land and to control the conduct of others on his property so as to avoid unreasonable risk of harm to those outside the property. A court could find it reasonably foreseeable that a large skyrocket might malfunction and cause injury or damage to the person or property of someone outside the landowner's land, especially to an adjoining landowner. By failing to prevent his guest from lighting the skyrocket, the landowner breached his duty to control the conduct of persons on his property so as to avoid an unreasonable risk of harm to those outside the property. This breach actually and proximately caused the damage to the neighbor's garage. Therefore, the neighbor would prevail under the theory set forth in (A).

804 - Unavailability defined

A declarant is unavailable if: a. He is exempted from testifying because the court rules that a privilege applies; b. He refuses to testify concerning the statement despite a court order to do so; c. He testifies to not remembering the subject matter; d. He is unable to be present or testify because of death or physical or mental illness; or e. He is absent (e.g., beyond the reach of the trial court's subpoena) and the statement's proponent has been unable to procure his attendance or testimony by process or other reasonable means. If the declarant cannot attend the trial or hearing but is able to give deposition testimony, he is considered to be an available witness, except with respect to the "former testimony" and "forfeiture by wrongdoing" exceptions discussed in 2. and 6., below.

Hearsay Exemption Witness Statement Prior Inconsistent

A prior inconsistent statement is admissible for its substance if it contradicts the witness's trial testimony and was made under oath. A consistent statement will be admissible if the witness's credibility has been attacked on cross examination first.

Professional Standard of Care

A professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing. •A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent. •A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld consent on learning of the risk.

A patient went to a dermatologist for treatment of a skin condition on his face that had resisted standard treatment. The dermatologist prescribed a new topical antibiotic cream that was recommended by her associate. She gave the patient instructions on how and when to apply the cream but did not discuss potential side effects. The patient purchased the cream at his local pharmacy and applied it as instructed. Shortly thereafter his skin turned a distinct shade of green and he felt a strong burning sensation when he tried to wash it off. The color took almost a week to fade away, during which time he avoided going out in public and took time off from work. The cream was packaged with a lengthy printed insert that detailed a number of possible side effects of varying degrees of probability. A "green pallor" and "irritation" were listed as uncommon side effects. The patient sued the dermatologist for prescribing the medicine and established the above facts. He also testified that he would not have taken the medicine had he been informed of all of the potential side effects. If the dermatologist is found to be not liable to the patient, it will be because: (A) A reasonable person in the patient's position would have used the cream even when told of the potential side effects. (B) The printed insert that came with the cream listed possible side effects similar to the reaction the patient experienced. (C) The severity of the reaction the patient experienced was unforeseeable. (D) The jurisdiction does not apply a "national" standard of care to the dermatologist.

A. If the patient does not prevail, it will be because a reasonable person in the patient's position would have used the cream even after being told of the potential side effects. As part of the physician's duty of care, a doctor proposing a course of treatment has a duty to provide the patient with enough information about its risks to enable the patient to make an informed consent to the treatment. If an undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld consent to the treatment, the doctor has breached her duty. Here, whether the dermatologist breached her duty to the patient by not warning him of possible side effects would be determined ultimately by the trier of fact using a reasonable person standard. A determination that a reasonable person in the patient's position would have consented to using the cream even after being informed of the potential side effects would preclude the patient from prevailing

A patient with a degenerative eye disease visited a well-known eye surgeon, who told him that there were two ways to treat his eye: a more traditional surgical method or a recently developed injection method. Although the injection method had the advantage of a higher success rate, it also carried a 25% risk that vision would be lost completely, whereas such a risk was only 10% by the surgical method. The surgeon described both methods to the patient but did not tell the patient of the risk factors involved. The surgeon asked the patient which method he would like to use, but the patient told the surgeon to choose whichever method he preferred because he was the expert. The surgeon selected the injection method and carefully injected the patient's eye with the amount of medicine recommended by the medical literature and known to the surgeon from past experience. Unfortunately for the patient, the attempt to restore his vision to normal failed, and, in fact, he suffered a complete loss of vision as a result of the injection. Afterward, the patient learned of the different risk factors of the two methods. The patient sued the surgeon for his loss of vision. At trial, the above facts were established. The patient testified that he would have chosen the surgery had he known of the varying risk factors. At the close of the patient's case, the surgeon moved for a directed verdict. How should the court rule on the surgeon's motion? A.Deny the motion, because the jury could find that a reasonable person would not have consented to the injection procedure if informed of the risks. B.Deny the motion, because the patient would not have undergone the injection procedure had he known of the risks. C.Grant the motion, because the facts establish that the patient consented to the surgeon's selection of the procedure to use. D.Grant the motion, because there are no facts to indicate that the surgeon performed the procedure negligently.

A.Deny the motion, because the jury could find that a reasonable person would not have consented to the injection procedure if informed of the risks. The motion should be denied because the jury could find that a reasonable person would not have undergone the procedure had he been informed of the risks. A doctor has a duty to disclose the risks of treatment to enable a patient to make an informed consent. To establish breach of this duty, an undisclosed risk must have been serious enough that a reasonable person in the patient's position would have withheld consent. In other words, the patient will recover only if he can establish that the failure to disclose was the proximate cause of his injury. This will be a determination of fact for the jury to make.

The owner of a self-propelled riding mower had just started the engine to mow his front lawn when the clutch of the mower suddenly engaged, causing it to lurch forward rapidly and throw him off. By the time the owner caught up with the mower, it had started into the street. A motorist swerved to avoid the mower and struck a tree on the opposite side of the street. An investigation revealed that the sudden shift of the clutch was caused by a defective gear in the transmission. If the motorist brings a negligence action for personal injuries and property damage against the owner, will she prevail? A.No, because the owner was so startled by the mower's sudden movement that he was unable to react swiftly enough to prevent the harm. B.No, because the manufacturer of the mower is liable for the defective gear in the mower. C.Yes, because her damages were caused by the owner's operation of a dangerously defective piece of machinery. D.Yes, because a landowner owes a duty to passersby to exercise reasonable care in activities on his land.

A.No, because the owner was so startled by the mower's sudden movement that he was unable to react swiftly enough to prevent the harm. The motorist will not prevail under these facts because the owner does not appear to have breached his duty of care to her. A prima facie case for negligence consists of: (i) a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (ii) breach of that duty by the defendant; (iii) such breach being the actual and proximate cause of the plaintiff's injury; and (iv) damage to the plaintiff's person or property. While the owner owed a duty of care to the motorist because she was passing by his property while he was operating his riding mower, the facts do not suggest a breach of duty. He was thrown off by the sudden forward movement of the mower and could not catch up to it before it entered the street. Absent the owner's breach of duty, the motorist cannot recover.

Hearsay Exemption Admission of Party Opponent 2. Adopted Admissions

An adopted admission is a statement by a third party that is adopted by a party. Silence can be deemed an admission when the party was present when the statement was made, the party heard the statement, the party understood the statement, the party was able to respond and the reasonable person would be expected to deny it if false.

Hearsay Exemption Admission of Party Opponent 3. Employee Statement

An employee's statement can be used against an employer defendant when the employee's statement was made by an employee, about a matter of employment and made during employment.

After picking up a load of hazardous chemical waste, a truck driver for a waste management company set out on the road to his next stop. However, he had failed to secure the latch on the back panel of the truck. Consequently, the panel opened while the truck was on the road, and a metal canister full of chemical waste fell onto the road. A car struck the canister, causing the car to veer off the road and injure the driver. The driver filed suit against the company for his injuries. The jurisdiction in which the above events took place has adopted a rule of partial comparative negligence. At trial, the driver of the car admitted that he had momentarily taken his eyes off the road to look at his speedometer. When he had looked up again, the canister was there and he could not stop in time. The jury found that the company, through its truck driver, had acted willfully and wantonly and was 90% at fault, while the driver of the car was 10% at fault. The driver filed a motion for judgment notwithstanding the verdict, seeking recovery for 100% of his damages. If the judge grants the motion, what is the most likely reason? (A) A plaintiff's comparative negligence is not taken into account in cases of willful and wanton conduct by the defendant. (B) A state ordinance mandating motorists to stay within the posted speed limit requires as a matter of law an occasional glance at the speedometer. (C) The company was more than 50% at fault. (D) The company was engaged in an abnormally dangerous activity.

B If the driver was effectively required by statute to take an occasional quick look at his speedometer to make sure that he was complying with appropriate speed limits, then his momentary glance at the speedometer in the instant case would, as a matter of law, not constitute negligent conduct. Because this is a matter of law, the judge would be authorized to correct this aspect of the jury's verdict. If the driver is thus found to be not negligent in this matter, his recovery will not be reduced

A plaintiff brought a lawsuit against a grocery store for injuries she suffered after slipping on a puddle of water near a display of fruit. At trial, the plaintiff intends to call a witness to testify that he heard another shopper complaining to a store employee about a puddle in the same area 30 minutes before the plaintiff's fall. The plaintiff has not called the shopper, who still lives in the local area, to testify as a witness. Should the court admit the witness's testimony? (A) Yes, because it is a statement against interest. (B) Yes, because it is relevant evidence that the grocery store was aware of the dangerous condition and did nothing to correct it. (C) No, because the shopper is available to testify. (D) No, because it is hearsay not within any exception.

B The court should find the witness's testimony admissible as relevant evidence that the grocery store was aware of the dangerous condition. Hearsay is a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted. A hearsay statement to which no exception to the hearsay rule is applicable must be excluded upon appropriate objection to its admission. However, a statement that would be inadmissible hearsay if offered for the truth of the matter asserted may be admissible for a non-truth purpose, such as to show the effect of the statement on the listener or reader. For example, in a negligence case where knowledge of a danger is in issue, a third person's statement of warning is admissible to show notice or knowledge on the part of a listener. Here, the shopper's remark to the store employee is an out-of-court statement. However, the statement can be offered to show that the grocery store had notice of a possible danger posed by the puddle. (Note that the remark would be inadmissible hearsay if offered to prove the puddle existed.)

A driver and his passenger were involved in an automobile accident when the driver ran a red light and crashed into another car. Due to a manufacturing defect in the automobile's airbag system, the passenger side airbag did not deploy. The passenger was killed on impact. The passenger's estate brought suit against the driver and the airbag's manufacturer. At trial it is established that the driver was negligent in running the red light. What effect would such proof have on the claim of the passenger's estate against the airbag manufacturer? (A) It would reduce recovery by the estate if the action against the manufacturer is based on negligence. (B) It would bar recovery by the estate if the trier of fact finds that the driver was the sole legal cause of the passenger's death. (C) It would bar recovery by the estate if it is shown that the driver is the sole legal heir of the passenger's estate. (D) It would have no effect on recovery by the estate as long as the action against the manufacturer is based on strict liability.

B The driver's negligence would bar recovery if it was the sole legal cause of the passenger's death. Regardless of the theory that the plaintiff is using in a products liability action, actual and proximate cause must be established. If the driver's negligence is the sole legal or proximate cause of the passenger's death, it would preclude the estate's suit against the airbag manufacturer because the defect was not a legal cause of the passenger's death.

Some teenage boys on spring break were canoeing on a river when their canoe overturned. A nearby fisherman overheard the teens' cries for help and immediately dove into the river to rescue them. The fisherman hit his head on some hidden rocks and suffered a head injury. If the fisherman sues the teens to recover damages and prevails, what is the likely reason? A.The jurisdiction has adopted a "Good Samaritan" statute. B.The teens put themselves in danger by not paying attention to the rocks and currents in the river. C.The jurisdiction imposes a duty of care toward unforeseeable plaintiffs. D.The jurisdiction does not impose a duty of care toward unforeseeable plaintiffs.

B. The teens put themselves in danger by not paying attention to the rocks and currents in the river. If the fisherman prevails, it will be because the teens acted negligently by not paying attention to the rocks and currents in the river. Under the principle that danger invites rescue, a rescuer is a foreseeable plaintiff. The teens owed the fisherman a duty of care because he undertook to rescue them. If the teens negligently placed themselves in a position of danger that might invite a rescue, they breached a duty to any rescuer who suffered injury from a rescue attempt, as long as the attempt was not reckless. Here, the fisherman can prevail if the teens were negligent by failing to pay attention to the rocks and currents, because there is no indication that he acted recklessly and because he suffered damages in the rescue attempt.

The class president invited his class to his home to celebrate homecoming. When the sun began to set, a student built a bonfire in the backyard. The student continued to feed the flames until the bonfire was quite large. Suddenly, a gust of wind blew the flames to a neighboring property, igniting the neighbor's shed. If the neighbor sues the student for the damage to his shed on a theory of negligence, under which of the following arguments, if sustained by the facts, would the student most likely be able to avoid liability? A.The lighting of bonfires on homecoming is an accepted custom in the community. B.The bonfire was positioned by the student in the center of the backyard to avoid harming neighboring property. C.The fire that started would have burned itself out but for the fact that the neighbor's shed was built out of substandard, highly flammable material. D.The student was a guest on the class president's property and entitled to the same restricted scope of liability as the property owner.

B.The bonfire was positioned by the student in the center of the backyard to avoid harming neighboring property. The student probably will be able to avoid liability if he can establish that he built the bonfire to avoid harming neighboring property. The element of breach of duty in a negligence case requires a showing that the defendant acted unreasonably, which is a question for the trier of fact. Assuming that the student owed a duty to avoid harm to the neighbor's shed, the student will be able to argue that he did not breach that duty because he positioned the bonfire to avoid damaging the neighbor's shed. If the facts support this argument, the student probably will be able to avoid liability to the neighbor.

A company operated a fleet of touring buses. It owned its own garage for repairing and maintaining its fleet. Behind this garage was a large vacant lot in which the company stored old, discarded, and wrecked buses, which it salvaged for parts or sold for scrap. This area was fenced in by a five-foot-high chain link fence, but the company was aware that children from the neighborhood would climb the fence and play among the junked buses. Consequently, the company would have one of its employees walk through the storage area during the day to chase away any children who may have scaled the fence. One Saturday afternoon, when the company's garage had closed for the weekend, a group of children climbed over the storage area's fence to play army among the junked buses. One of the children (who had been chased away from the lot before and who also had been warned by his parents not to play in these buses) was trying to climb onto the roof of one of the old buses, when he slipped on the front bumper of the bus and his arm broke through the front windshield, causing severe lacerations. Through an appropriate guardian, the child brought suit against the company for his injury. Which of the following, if established, would most aid the child in showing that the company breached a duty owing to him? (A) It would have been economically feasible to remove the windows from all of the abandoned buses. (B) This area would be classified more as a residential neighborhood than an industrial area. (C) The company could have eliminated the risk of injury without unduly interfering with its normal operations. (D) The company improperly maintained the fence that surrounded the lot with the discarded and abandoned buses.

C A land occupier has an affirmative duty to warn or protect children against dangerous artificial conditions on the land. Thus, the best answer to the question is what the company should have done to best protect the children in this factual situation

An architect who specialized in the design of large buildings designed a resort hotel for a hotel chain. The architect took into account weather conditions where the hotel was to be built, and came up with two designs that would cost approximately the same amount to construct to specifications. One of them had the four large supporting pylons set so that it could withstand winds 20% higher than the region had experienced in the 85 years that the weather bureaus kept records for the area. The other design set the pylons farther apart, but they would withstand winds 50% higher than the region had experienced. The architect decided to go with the first (20% margin) design, because he felt it was more aesthetically pleasing, and also because a 20% safety margin was usually considered adequate. Officers of the hotel chain reviewed and approved the architect's plans, and the hotel was constructed according to the plans. Two years after the hotel opened, a freak storm struck, bringing with it winds of hurricane force. The hotel suffered significant damage, which would have been avoided had the supporting pylons been placed farther apart. If the hotel chain sues the architect for the damage to the hotel, who will prevail? (A) The architect, because the hotel chain reviewed and approved the plans. (B) The architect, because innkeepers, rather than architects, are subject to strict liability. (C) The architect, if he acted in the manner of a reputable member of his profession. (D) The hotel chain, because the placement of the pylons resulted in extensive damage to the hotel.

C If the architect acted in the manner of a reputable member of his profession, he will not have breached the duty of care owing to the hotel chain. As the first two elements of its prima facie negligence action, the hotel chain must establish the existence of a duty on the part of the architect to conform to a specific standard of conduct for the protection of the hotel chain against an unreasonable risk of injury, and a breach of that duty. A professional, such as an architect, is required to possess and exercise the knowledge and skill of a member of the profession in good standing. If the architect exercised such knowledge and skill, he will have satisfied the applicable standard of care.

At the end of the season, the owner of a private beach stacked up his rental canoes onto a trailer, and arranged for them to be moved the next day into a storage shed for the winter. That evening, two nine-year-old boys came onto the owner's property even though they knew that the lake was closed to the public for the season. Both of them had used the canoes (with an adult) several times during the past summer. They unhooked one of the canoes from the rack, lifted it down, and pushed it into the water. Although the life vests were sitting in an open bin nearby, neither boy put one on. When they were out in the middle of the lake with the canoe, they tried to switch seats and caused the canoe to capsize. They both tried to swim to shore. One was able to make it, but unfortunately the other boy could not make it and he drowned. Had he been wearing a life vest, he would have survived. The boy's parents bring a wrongful death action against the beach owner. If the beach owner prevails, what will be the likely reason? (A) Children of the boy's age, intelligence, and education would not likely take the canoe out without a life vest. (B) The owner took precautions to make the canoes inaccessible. (C) The boy appreciated the risk of taking the canoe out onto the lake without a life vest. (D) The boy was not lured onto the owner's property by the canoes.

C If the beach owner is not liable to the boy's parents, it will be because the boy appreciated the risk of using a canoe without a life vest. A landowner owes a higher duty of care to a child trespasser than to an adult trespasser. Under the "attractive nuisance" doctrine, a landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on his property. To assess this special duty on the landowner, the following elements must be shown: (i) there is a dangerous condition on the land of which the owner is or should be aware; (ii) the owner knows or should know that children frequent the vicinity of this dangerous condition; (iii) the condition is dangerous because the child is unable to appreciate the risk; and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk. The third element would be negated by showing that the boy appreciated the risk of taking the canoe out onto the lake without a life vest. In that case, the attractive nuisance doctrine would not apply and the boy would be treated like an adult trespasser, and leaving the canoes out would not constitute a breach of the owner's limited duties to adult trespassers.

A hiker, although acting with reasonable care, fell while attempting to climb a mountain and lay unconscious and critically injured on a ledge that was difficult to reach. The plaintiff, an experienced mountain climber, was himself seriously injured while trying to rescue the hiker. The plaintiff's rescue attempt failed, and the hiker died of his injuries before he could be reached. The plaintiff brought an action against the hiker's estate for compensation for his injuries. In this jurisdiction, the traditional common-law rules relating to contributory negligence and assumption of risk remain in effect. Will the plaintiff prevail in his action against the hiker's estate? A Yes, because his rescue attempt was reasonable. B Yes, because the law should not discourage attempts to assist persons in helpless peril. C No, because the hiker's peril did not arise from his own failure to exercise reasonable care. D No, because the plaintiff's rescue attempt failed and therefore did not benefit the hiker.

C One who acts negligently and endangers himself is also liable for the resulting injuries of anyone who undertakes to rescue him. Here, however, the hiker was not negligent in creating his peril, and the plaintiff will not prevail.

A car owner lent her automobile to her girlfriend for the specific purpose of picking up a pizza that the owner and the girlfriend had ordered for dinner. The girlfriend drove to the shopping mall where the pizzeria was located and parked the owner's car there. Instead of going directly to the pizzeria, the girlfriend went into a bookstore, browsed, and eventually purchased a book. The girlfriend then went to the pizzeria and picked up the pizza, which had been ready for 15 minutes. Just as the girlfriend left the pizzeria to return to the car, another car struck the owner's parked car, causing extensive damage to the car. The owner did not carry collision insurance, and the car required $800 worth of body work. If the owner sues the girlfriend on a negligence theory for damage to the car, who will prevail? (A) The owner, because the girlfriend exceeded her authority when she went to the bookstore. (B) The owner, because but for the girlfriend's delay in getting the pizza, the owner's car would not have been damaged. (C) The girlfriend, because she did not create a foreseeable risk of damage to the owner's car. (D) The girlfriend, because the family car doctrine imputes any of the girlfriend's negligence to the owner.

C The girlfriend is not liable for the damage to the car because a reasonable person would not have foreseen damage arising from the delay in getting the pizza. A prima facie case for negligence consists of: (i) a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (ii) breach of such duty by the defendant; (iii) that such breach is the actual and proximate cause of the plaintiff's injury; and (iv) damage to the plaintiff's person or property. No duty is imposed upon a person to take precautions against events that cannot reasonably be foreseen. Here, it is true that, had the girlfriend gotten the pizza immediately, the owner's car would not have been at the location it was at the time it was struck.However, a mere delay in picking up a pizza while leaving a car properly parked does not create a foreseeable risk of damage to the car. Thus, there is no basis for holding the girlfriend liable in negligence.

the pedestrian testified that the driver ignored the stop sign and crashed into him. He was not cross-examined. The pedestrian then calls the responding police officer to testify that when she arrived a few minutes after the accident and found the pedestrian lying on the ground, the pedestrian screamed, "I'm not going to make it! The driver ran the stop sign!" Is the officer's testimony admissible? (A) No, because the pedestrian's statement is hearsay not within any exception. (B) No, because the pedestrian has not been impeached, and therefore cannot introduce his own prior consistent statement. (C) Yes, because the pedestrian's statement was an excited utterance. (D) Yes, because the pedestrian's statement was made under belief of impending death.

C The officer's testimony is admissible because the pedestrian's statement qualifies as an excited utterance. The pedestrian's statement is hearsay because it was made out of court and is being offered for its truth (that the driver ran the stop sign). For a statement to be admissible under the excited utterance exception to the hearsay rule, it must relate to a startling event and be made while the declarant was under the stress of excitement caused by that event. These conditions are met in this fact pattern. The statement was made within a few minutes of the accident, and appears to have been made while the pedestrian was under the excitement caused by the accident.

A husband was on his way to meet his wife for lunch at the restaurant in the lobby of a bank building where she worked. He had just entered the building, which was owned and operated by the bank, when he heard screams and the sound of breaking glass from the restaurant area. He immediately saw that a large piece of artwork made of stained glass had fallen onto the seating area of the restaurant. In the seating area he saw several injured persons, including his wife, lying in the wreckage of the artwork. He fainted and hit his head on the marble floor, fracturing his skull. The artwork had collapsed because the pedestal that the bank had provided for the artwork was not properly constructed. If the husband sues the bank for his injury, is he likely to prevail? A.No, because he was not personally in the zone of danger of physical injury. B.No, because he did not actually see the artwork collapse onto the diners. C.Yes, because his wife was one of the persons he saw lying in the wreckage. D.Yes, because the bank had provided the pedestal for the artwork.

C. Yes, because his wife was one of the persons he saw lying in the wreckage. The husband will recover for his injuries because his wife was among those injured by the collapse of the artwork. The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. In most jurisdictions, a bystander who sees the defendant negligently injuring another can recover for his own distress if (i) the plaintiff and the person injured by the defendant's negligence are closely related, (ii) the plaintiff was present at the scene of the injury, and (iii) the plaintiff personally observed or perceived the event. Observation is typically by sight, but may also be by hearing or other senses under certain circumstances.

A plaintiff has sued a defendant for personal injuries the plaintiff suffered when she was bitten as she was trying to feed a rat that was part of the defendant's caged-rat experiment at a science fair. At trial, the plaintiff offers evidence that immediately after the incident the defendant said to her, "I'd like to give you this $100 bill, because I feel so bad about this." Is the defendant's statement admissible? (A) No, because it is not relevant to the issue of liability. (B) No, because it was an offer of compromise. (C) Yes, as a present sense impression. (D) Yes, as the statement of a party-opponent.

D D is correct. The statement is an admission by a party-opponent because it is being offered against the party that said it (the defendant) and is relevant to his liability. Fed. R. Evid. 801(d)(2).

A trucker and a biker were involved in a "road rage" incident, and the trucker was treated for his injuries at a hospital. The trucker subsequently sued the biker for battery. At trial, the trucker's attorney wishes to introduce a portion of a record by a nurse at the hospital reporting that the trucker said the biker was the one who started the fight. The hospital's custodian of records has already testified that the record is an original and was kept in the ordinary course of business. The nurse died before trial. Is the hospital record admissible? (A) Yes, because it fits the hearsay exception for business records. (B) Yes, because it fits the hearsay exception for statements made for the purpose of medical diagnosis or treatment. (C) No, because the nurse is not available for cross-examination. (D) No, because it is hearsay not within any exception.

D That portion of the record is inadmissible. The trucker's statement was made out of court and is being offered for the truth of the matter asserted, and it does not qualify under any exception to the hearsay rule. (A) is incorrect. There are two hearsay statements here: the record itself (the nurse's transcription of what the trucker said to her), and the trucker's statement within the record. For a statement to fall within the business records exception, the declarant must either have personal knowledge of the fact stated or must have received the information from someone with personal knowledge who transmitted it in the ordinary course of business. Inner hearsay statements by "outsiders" do not qualify and need to fall within an independent hearsay exception. In this case, the record itself may qualify under the business records exception (although arguably the nurse was not under any business duty to make a record about the details of who was responsible for the trucker's injuries). However, the trucker's statement within the record clearly does not fall within the business records exception, because the nurse had no personal knowledge of the road rage incident and the trucker was not under any business duty to transmit the information.

A homeowner hired a pool contractor to remove an existing pool while the homeowner was out of town. The contractor applied a powder that, when mixed with an alcohol-based solvent, would assist in dissolving the cement used in the construction of the pool. While applying the powder, the contractor spilled some of it on a portion of a nearby wooden deck. He then proceeded with removal of the existing cement structure, leaving the site at 4 p.m., after nine hours of work. When he left for the day, all of the powder had been removed from the pool area except for the portion on the wooden deck, which had not otherwise been affected by the work done that day. The contractor, knowing that no one would be at the house, planned to clean that up the next day. An hour later, the homeowner's friend, who had permission to use the pool anytime, let himself in with a key that the homeowner had given him. When he went outside to the rear pool area, he saw that the pool was dry and that much of the surrounding area was broken up. Rather than go home, he decided to relax on the wooden deck. Noticing the powder on the deck, he decided to hose it off before he set down a lawn chair, but when he turned on the water, the powder exploded into flames, severely burning him. The powder was a silicate of magnesium that was extremely volatile when exposed to water. The warnings on the container, which the contractor had read because he was using the substance for the first time, stated as follows: "Danger. Extremely caustic. Do not use near any alcohol-based solvent except under professional supervision. Do not use near source of high heat or open flame." The friend brought an action for personal injuries against the contractor. What is the likely result? (A) The friend will win, because the contractor left the powder on the wooden deck. (B) The friend will win, because the contractor is held to the same standard of liability as the manufacturer of the powder. (C) The contractor will win, because he used the powder for the purpose for which it was designed. (D) The contractor will win, because it was not reasonably foreseeable that the powder would cause injury to anyone.

D The contractor will win, because the facts indicate that he was unaware that anyone would be at the house or that the powder would react as it did when exposed to water. Because the call of the question does not identify the theory of liability that the friend is using, all possible theories of liability must be considered. The contractor did not commit an intentional tort against the friend. He is not a commercial supplier of a product, who would be liable under a strict products liability theory; nor is he strictly liable for engaging in an abnormally dangerous activity, because the activity can be conducted safely if done carefully by professional users. Most likely, this suit is based on negligence. A prima facie case for negligence consists of: (i) a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (ii) breach of that duty by the defendant; (iii) the breach was the actual and proximate cause of the plaintiff's injury; and (iv) damage to the plaintiff's person or property. When a person engages in an activity, he is under a legal duty to take precautions against creating unreasonable risks of injury to other persons. However, a duty of care is owed only to foreseeable plaintiffs, and no duty is imposed to take precautions against events that cannot reasonably be foreseen. While courts usually conclude that the injured plaintiff in a negligence action was a foreseeable plaintiff, here, it appears that the contractor was unaware that the friend had a key to the homeowner's house and might come over at any time. To the best of the contractor's knowledge, no one was going to be at the house before he returned the next day because the homeowner was out of town. In addition, the contractor, who was using the product for the first time, evidently was unaware that the powder was volatile when exposed to water because the manufacturer did not include a warning to that effect. If the contractor could not reasonably have foreseen that the powder would explode upon being sprayed with water, he would have had no duty to take precautions against such an explosion. Thus, the contractor breached no duty to the friend by leaving the powder on the deck and will not be liable for the friend's injuries

A city ordinance required that all dogs be leashed when taken outside of an enclosed area. One dog owner often allowed his dog to run loose in front of his house. One clear and sunny day when the dog was running loose, a pizza delivery driver was driving carefully on that street at a speed somewhat below the posted limit. The dog dashed out into the street from between two parked cars. The delivery driver alertly applied her brakes but could not avoid striking the dog. A man driving directly behind the delivery driver promptly applied his brakes as soon as he saw the delivery driver brake. However, the man's vehicle struck the rear of the delivery driver's car. Both of the vehicles suffered damage, and both drivers suffered minor personal injuries. Will the man prevail if he sues the delivery driver for his vehicle damage and personal injuries? A.Yes, because the ordinance was designed to prevent dogs from being hit by cars. B.Yes, because the delivery driver was a proximate cause of the accident. C.No, because the delivery driver obeyed the traffic laws. D.No, because the delivery driver was not negligent.

D.No, because the delivery driver was not negligent. The man will not prevail because the delivery driver was not negligent. Even though the delivery driver may have been a cause of the accident, she would be liable only if she was negligent. Here, she did not breach any duty of care under the facts.

Negligence checklist

Duty i. Assumption of duty ii. Child standard iii. Premises Liability Breach i. Res Ipsa Causation i. Factual ii. Proximate 1. Unforeseeable harm cuts off liability 2. Intervening, Superseding cuts off liability for subsequent D's conduct. Damages

Non-Hearsay

Evidence NOT offered for truth if fact pattern tells you what evidence is offered for (e.g., knowledge, notice, provocation, capacity, intent or self-defense) the statement made be offered for ---Effect on listener ---Listener's state of mind

NON-HEARSAY Witness Statements

If the witness is in the court room, subject to cross exam, and the statement is: 1) Prior, inconsistent statement must be under oath (if not under oath, can be used for impeachment) 2) Prior consistent statement (witness must be cross-examined first) 3) Statement of ID

804 EXCLUSIONS

If the witness is unavailable, then there are 5 available exclusions that could allow the admission of the out of court statement. A witness is unavailable if he or she · is dead, · sick, · out of subpoena range, · invoking a privilege or · can't remember. If a witness is unavailable, the out of court statement could be admitted as former testimony; dying declaration or a statement against interest.

A patient visited a physician because of a painful foot. The physician told the patient that he could choose several weeks of physical therapy or undergo elective surgery to correct the problem. The physician did not tell the patient that there was a risk of nerve damage if he underwent the surgery, although most physicians proposing this surgery would have done so. The patient chose the surgery and the physician performed the surgery successfully. However, the patient was upset when he learned afterward about the risk of nerve damage, because, had he known of the risks of the surgery, he would have chosen the therapy instead. In an action against the physician for failing to inform the patient of the risks of the surgery, is the patient likely to prevail?

Need answer

In a state that imposed a maximum speed limit of 65 m.p.h. by statute, a truck driver was going 75 m.p.h. on a stretch of highway when a car pulled in front of her. The truck driver was unable to stop in time and hit the car, pushing it into the next lane where it was struck by a bus traveling the speed limit. The collision with the bus caused serious injury to the driver of the car. In an action against the truck driver for negligence, uncontroverted evidence was introduced that, even if the truck driver had been going 65 m.p.h., she would have struck the car and pushed it into the path of the bus. Is the driver of the car likely to prevail?

Need answer

Hearsay

OCS TOMA Statement made prior to trial

Hearsay Exemption Witness Statement Statement of ID

Out of court statements of identification will be admissible if, once again, the witness is in the court room subject to cross examination.

Duty - how much owed (professionals)

Person who performs social service to public and who receives special training Standard: average number of the profession practicing in similar community

BREACH

i) Identify D's wrongful conduct ii) Determine whether D acted unreasonably iii) Res ipsa loquitor (1) Accident does not normally occur absent negligence (2) Rule out other defendants, defendant in exclusive control (3) D not negligent

Defense to negligence - comparative negligence

i) P failed to exercise relevant degree of care for his own safety ii) Pure comparative negligence: 50%-50%; 60%-40% etc. (DEFAULT RULE) iii) Partial/Modified Comparative Negligence: (1) P fault under 50% = recovery (2) P fault over 50% = no recovery

Defense to negligence - secondary assmption of risk (aff defense)

i) ∆ does have duty to P & may have breached it ii) P recognized whatever danger resulted from ∆'s negligence iii) P voluntarily chose to encounter danger

Duty - how much owed (children)

under 4 = NO negligence over 4 = care of a hypothetical child of like age, experience, and intelligence SUBJECTIVE EXCEPTION: general RPP standard applies if child engages in adult activities (motorized vehicles, boats, cars, etc.)

Hearsay Exceptions Where Availability Does Not Matter

· Present sense impression · Excited utterance · Statement for medical treatment · Present State of Mind—Present Conditions, future intent · Recorded Recollection · Business Records · Public Records IF NONE APPLY PICK HEARSAY=INADMISSIBLE