Business Law - Module 5 - TORT LAW - Negligence

What is attractive nuisance?

-landowner may be liable for injuries to children enticed to enter the property. Warning signs placed on property are not enough because children lack good judgment

How would you describe "assumption of risk"?

A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger.

What is a trespasser? Does a landowner owe duty to someone they don't know or anticipate entering their property? Do they owe duty of care to people they anticipate, give permission to or discover on their land?

A person is a trespasser if she or he intentionally enters upon someone else's land without permission (express or implied) or some other privilege to do so. If owner does not know or anticipate someone on their property, they owe NO duty. If they give discover or anticipate (a shortcut path that children take) tresspassers, you have a duty to warn or make safe conditions that could cause them bodily harm.

To determine negligence, the court compares the conduct of the defendant with the conduct of .

A reasonable person. In a legal case, the court will compare the conduct of the defendant with the conduct of the actions that a "reasonable person" might take in order to determine negligence.

comparative negligence (Defense)

A tort rule for allocating damages when both parties have some fault. Damages are apportioned according to degree of fault for each party.

"Fill in the blank" question: select the correct answer. The intentional commission of an act that a reasonable person knows would cause injury to another is known as . culpable comparative contributory negligence

.Correct! Culpable negligence consists of acting recklessly without reasonable caution and putting someone else at risk, injury, or death. Incorrect. Negligence requires that four elements be met. There is insufficient detail. Negligence is not always intentional.

What are the elements of negligence?

1. Duty 2. Breach (of duty of care from a reason. person) 3. Causation 4. Damages

Actual Cause

Also known as cause in fact, this is measured by the "but for" standard: But for the defendant's actions, the plaintiff would not have been injured. Still, this is not enough causation to create liability. The injuries to the plaintiff must also be foreseeable, or not "too remote," for the defendant's act to create liability. This is proximate cause: a cause that is not too remote or unforeseeable.

Negligence per se doctrine

An act (or failure to act) in violation of a statutory requirement. A standard of care that is a statute unlike ordinary negligence, the plaintiff doesn't need to prove that a reasonable person should have acted differently.

A hockey team is being sued by a spectator who has been injured by a puck hit into the stands. The team may claim _________________as a defense.

Assumption of risk. A spectator knew of risks when attending the hockey game and should assume a puck could hit him or her while attending a game.

What doctrine protects children when they trespass on another's property due to the presence of something such as an unfenced swimming pool? Assumption of risk Contributory negligence Attractive nuisance

Attractive nuisance. The attractive nuisance doctrine places an extra duty on an owner or occupier in certain circumstances when the known (or knowable) trespassers are children

What are special duties of professionals?

For professionals, the standard of care is not that of a reasonable person, but is instead the knowledge and skill of the minimally competent member of that professional community. Professional negligence is called malpractice.

What are special duties of professionals? Professional negligence is called?

For professionals, the standard of care is not that of a reasonable person, but is instead the knowledge and skill of the minimally competent member of that professional community. Professional negligence is called malpractice. EXAMPLE: Say you're an accountant preparing a client's tax forms. You make an error, which triggers an audit from the IRS. The client sues your business over the mistake because they should be able to reasonably expect a professional accountant to check their work.

What is res ipsa loquitur?

Helps plaintiffs prove "The accident speaks for itself" **The court will allow this form of circumstantial proof in some obvious cases. (Barrels do not just fall on people's heads without negligence. )

Based on the scenario, which type of landowner liability did Heather have to Bob? Heather hires Bob to fix the tile in her bathroom. The tile has been falling off in big chunks, but she had not yet told Bob that. When Bob enters the bathroom, he is hit on the head by falling tile. Heather is found liable. This an example of _____________. .

Invitee. Bob was invited into Heather's home to conduct business. Heather was required to affirmatively go and look for conditions that may be a hazard for those who may be unaware of these conditions.

proximate cause

Legal cause. It exists when the connection between an act and an injury is strong enough to justify imposing liability.

How would you describe "negligence"?

Negligence refers to conduct that falls below the standards established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonable person acting under similar circumstances

The purpose of the negligence standard is to protect others against the risk of injury that foreseeably would ensue from unreasonably dangerous conduct. Would it be negligence if you braked and hit a person when they ran out in front of your car?

Not negligent.

How would you describe "duty of care"?

Obligation of reasonable care to avoid causing this type of unintentional injury. Was the accident forseeable?

What is a licensee when it comes to private property?-

People on private property with the permission of the owner or occupier are licensees. Licensees include visitors to private homes, such as friends and family. Ironically (and confusingly), people who come into your home by way of a formal party invitation are not invitees; they are licensees. People who ask if they can fish on your property are licensee's. You owe duty to them to warn them of dangerous conditions.

What is an invitee? Key difference b/w licensee & invitee?

People that come on land to do business or come on public property. The key difference between licensees and invitees is that with invitees, there is a requirement to affirmatively go out and look for conditions that may be a hazard for the unwary. This makes sense if you consider that invitees are generally persons from whom the owner or occupier stands to make money. You owe duty to them to make sure sight is safe.

Driving his sport-utility vehicle negligently, Winnie crashes into a streetlight. The streetlight falls, smashing through the roof of a house and injuring Piglet badly. But for Winnie's negligence, Piglet would not have been injured. Regarding the injury, the crash is the proximate or actual cause? .

Proximate cause! The actual cause (causation in fact) found in the connection between Winnie's driving and Piglet's injuries passes the "but for" test; however, this is not enough causation to create liability. The injuries to the plaintiff must also be foreseeable, or not "too remote," for the defendant's act to create liability. In this case, this is proximate cause; a cause that is not too remote or unforeseeable.

A managed care company was found liable for denying valid claims for health insurance coverage. The company was ordered to pay compensatory damages to a group of plaintiffs. To "make an example" of the insurer, the court also ordered the insurer to pay an additional $10 million to deter other insurers from engaging in the same wrongful acts. The $10 million award is an example of

Punitive damages. Juries will often award punitive damages as an additional payment in an effort to deter others from committing similar acts.

Res ipsa loquitur can be applied in cases of negligence where the evidence of causation is inaccessible to the plaintiff. True or False

TRUE. Res ipsa loquitur is a rule of circumstantial evidence that permits the jury to draw an inference of negligence.

Jason and Sherry hired ABC Contractors to build their dream house. Two weeks after moving into the home, the kitchen floor gives way. Jason and Sherry fall through the floor into the basement and are injured. Jason and Sherry can sue for negligence per se. True or False

True. These homeowners may be able to prove that the contractor was negligent per se when he failed to build the kitchen floor properly. Regulations that require the contractor to put in minimum support for the floor are designed to protect home dwellers from injury by ensuring that a floor construction does not fail.

Virtually any cause of an injury can be traced to some preceding cause. The problem for the law is to know when to draw the line between causes that are immediate and causes too remote for liability reasonably to be assigned to them.In tort theory, there are two kinds of causes that a plaintiff must prove: [what are they?

actual cause and proximate cause.

Module 5: Tort Law—Negligence Key Takeaways The most common tort claim is based on the negligence of the defendant. In each negligence claim, the plaintiff must establish a preponderance of the evidence. It is possible for the negligence of one person to be imputed to another, as in the case of respondeat superior (a party is responsible for the acts of their agents). There are many excuses (defenses) to claims of negligence, including_______ and ______________.

assumption of risk, comparative negligence

Fundamentally, the negligence cause of action is about ________. It is not about punishment. It is possible to get punitive damages as an added remedy in a negligence lawsuit, but doing so requires proving more than negligence. In particular, a punitive damages award requires showing that the defendant's conduct was reckless, wanton, or willful.

compensation

Summary Negligence imposes a duty on all persons to act reasonably and to exercise due care in dealing and interacting with others. There are four elements to the tort of negligence. The plaintiff must demonstrate the defendant owed the plaintiff a ____. If the risk of injury is _______, then the defendant owes the plaintiff a duty. There must be a ______ of that duty. A _____ occurs when the defendant fails to act like a reasonable person. Professional negligence is known as malpractice. The plaintiff must demonstrate that the defendant _____ the plaintiff's injuries. Both causation-in-fact and proximate causation must be proven. The plaintiff must demonstrate legally recognizable injuries, which include past, present, and future economic, medical, and pain and suffering ______. Defendants can raise several affirmative defenses to negligence, including assumption of risk, comparative or contributory negligence, and, in some cases, Good Samaritan statutes. In those few jurisdictions where contributory negligence has not been modified to comparative negligence, plaintiffs whose negligence contributes to their own injuries will be barred from any recovery

duty, forseeable breach, breach caused damages

Some compensatory damages are natively denominated in dollars, such as repair costs, car rental, lost wages, medical bills, and prosthetics. These are pecuniary damages. Pecuniary damages go by various names. Sometimes they are called ______damages," a phrase which uses the word ________ in a limited, nontechnical sense to mean "having to do with money." Another label used for the same thing is "special damages," a common phrasing in the context of defamation.

economic, economic

Duty of care applies when you walk into a room ...you can't shoot gun off, or swing arms around everywhere. You owe reasonable amount of care when ______ with someone. You do NOT owe care if you are walking and see someone drowning unless you have a special relationship with them like a relative, or you're a professional (lifeguard) or you undertake helping them and then decide to stop caring for them .

interacting

contributory negligence (Defense)

occurs when the person is injured in part due to their own negligence. the injured person cannot collect damages if his or her care falls below the standard of care for their own protection.

Businesses owe a duty to exercise a reasonable degree of care to protect the public from foreseeable risks that the owner knew or should have known about. Name some examples...

slippery floors, things falling off shelves, rain & ice causing slick walkways