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MBE Found. Torts II
Negligence and Defenses
| Term | Definition |
|---|---|
| Duty | -What? --A legal req' to act as an ordinary, prudent, reas. Person taking precaution against unrfeas. Risks of injury to others -To whom? --All foreseeable P's -When? --Everyday situations --Emergency situations |
| Duties of Care | -Trespasser: --Unknown --No duty -Licensee: --Friend --Warn of known dangers -Invitee --Customer --1)Inspect --2)Make safe |
| Negligence Per Se | -Statute designed to: --Prevent this type of injury --Protect this class of P |
| Res Ipso Loquitur | -The accident does not normally occur absent negligence on the part of the D AND --The instrumentality causing the accident was within the D's exclusive control |
| Contributory Negligence | -A negligent P is barred from recovery -Minority rule -Last Clear Chance Rule-a negligent P can still recover if he can show the D had the last clear chance to avoid the injury and failed to do so -Only use if fact pattern says-Contributory Neg. Juris |
| Comparative Negligence (*No last Clear chance doctrine*) | -A Negligent P's recovery will be reduced by the percentage of his own negligence. -Pure: --Can recover even if P's negligence exceeds F's -Modified: --Recovery only if P's negligence is less than F's *MBE rule-Pure Comparative Negligence |
| Joint Tortfeasors | Where the combined negligent acts of two or more tortfeasors cause an indivisible injury (incapable of apportionment), each tortfeasor is held jointly and severally liable. |
| Release I | -When a tortfeasor makes a pretrial agreement to pay her share of the damages awarded to the P, such settlements usually precede the court's determination of each tortfeasor's liability |
| Release II | -The settling D's percentage of fault is deducted from the damages awarded the P regardless of the actual payment made by the settling D. |
| Foreseeable Intervening Causes | -Negligent rescue -Subsequent medical malpractice -Subsequent disease -General negligence ** if foreseeable Defendant remains liable.** |
| Unforeseeable/superseding Causes | -Acts of god --Lightning --Floods -Intentional torts of third parties -Intentional crimes of third parties **If unforeseeable=Defendant not liable(superseding) |
Created by:
Gkell001
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