Lecture 2

Question 1

negligence

Answer 1

• carelessness, but not trying to hurt someone

- most common to be found

Question 2

tort law

Answer 2

how as a society we react to the inevitable losses as a result of human interaction

Question 3

what triggers obligation-where does law come from?

Answer 3

• contract terms

- negligence imposed upon us by operating law

Question 4

negligence (jury instruction)

Answer 4

• fails to exercise ordinary care
• does or fails to do something
• subjecting a person or property to risk of damage

Question 5

strict liability

Answer 5

-nature of activity determines liability
-absolute liability of defendant regardless of the level of care exercised by the defendant
(encourage people to be careful when engaging in these dangerous activities)

Question 6

intentional torts

Answer 6

• assault, slander, libel
• defendant intends to cause harm
• knows of consequences

Question 7

criminal negligence

Answer 7

• “ordinary neg. to a high degree, consisting of conduct that the actor should realize creates a substantial/unreasonable risk of death or great bodily harm to another” (Wisc. Statute 939.25)
• ex: distracted driving

Question 8

finding a defendant liable to a plaintiff based on neg. is really a matter of ____ ______

Answer 8

social policy

Question 9

how many defendants are usually in a neg. case?

Answer 9

more than one

Question 10

contributory negligence

Answer 10

plaintiff contributes to the event and/or the loss suffered

Question 11

when do claims commonly occur?

Answer 11

the context of an employer/employee relationship

Question 12

Elements of negligence

Answer 12

1) duty of care
2) breach of the duty of care
3) some kind of harm
4) was the breach the proximate cause of the harm

Question 13

duty of care

Answer 13

there must be a duty of care owed by the defendant to the plaintiff

Question 14

foreseeability of risk test

Answer 14

a duty is owed to the plaintiff if the consequences resulting from the defendant’s negligent conduct ought to have been reasonably foreseeability by the defendant

Question 15

breach of the duty of care

Answer 15

if you conclude that there is a duty of care owed by the defendant then you must show that this duty of care was breached

Question 16

standard of conduct

Answer 16

• what was the degree of carefulness?
• not based on how people interact but rather what society’s expectations of how people interact
• courts created “a reasonable man of ordinary prudence” as an example person to compare to in trials

Question 17

duty for trespassers

Answer 17

• anyone on the property w/o consent-property owner is liable to the trespasser only for intentional acts- (liable to person falling in a trap, but not to someone falling in unfenced construction hole)
• exception for children and attractive nuisance situations

Question 18

duty for licensees

Answer 18

• anyone on the property to serve his/her own purposes but w consent (guests)
• property owner is responsible to the licensee to warn of hidden dangers of which the owner knows

Question 19

duty for invitees

Answer 19

• anyone on the property as a right because it is a public place/business
• owner is responsible to the invitee to exercise reasonable care in providing a safe place (wet floor signs)

Question 20

duty for rec/contact sport activities

Answer 20

-did the participant who cause the injury act recklessly or w/ an intent to cause injury?

Question 21

recklessness

Answer 21

acting w/o intent to cause to inflict the particular harm but in a manner which is so unreasonably dangerous that the person knows or should know that is highly probable that harm will result

Question 22

neg. of manufacturers of goods

Answer 22

-duty of manu. to exercise ordinary care in the design, construction, and manufacture of its product so as to render such product safe of its intended use

Question 23

the baseball rule

Answer 23

prohibits a spectator who is injured by a flying baseball from making a claim against the team or other responsible parties b/c they knowingly expose himself to the inherent risks (also applies to hockey)

Question 24

immunity statutes

Answer 24

cannot be sued although you might be neg.

Question 25

recreational immunity

Answer 25

limits liability of property owners towards others who use their property for rec. acts under circumstances in which the owner does not derive more than a minimal pecuniary benefit

Question 26

civil liability exception: emergency care

Answer 26

any person who renders emergency care at the scene of any emergency or accident in good faith shall be immune from civil liability for their acts/omissions in rendering such emergency care

Question 27

castle doctrine

Answer 27

immune from civil liability if use of force is intended or likely to cause death or great bodily harm if the actor reasonably believed that the force was necessary to prevent imminent death or bodily harm t themself or another person and the person against whom the force was issued was in the process of or unlawfully in the actor's dwelling

Question 28

proximate cause

Answer 28

a public policy limitation on your liability for consequences of your negligent acts despite the existence of causation in fact.

Question 29

but for clause

Answer 29

would the event not have occurred but for the defendant's conduct?

Question 30

Wisconsin Statute substantial factor

Answer 30

was the defendant's conduct a substantial factor in causing the event?

Question 31

general test of proximate cause

Answer 31

foreseeability- if defendant has breached the standard of care then the defendant is liable for all the foreseeable consequences that flow from the negligent acts either immediately or there after

Question 32

limitations of proximate cause

Answer 32

unforeseeable consequences/plaintiffs or superseding cause

Question 33

unforeseeable consequences/plaintiff

Answer 33

could the defendant have reasonably anticipated that his conduct would cause injury or loss? to the particular plaintiff?

Question 34

superseding cause

Answer 34

a defense to a claim of negligence when a subsequent act by a 3rd person, force, or event supersedes the first actor's negligence thus becoming a superseding cause relieving the first actor from liability

Question 35

Wisconsin Public Policy considerations in determining proximate cause

Answer 35

1. injury too remote 2. injury out of proportion to negligent act 3. in retrospect it appears extraordinary that negligence cause the harm 4. unreasonable burden on defendant 5. lead to fraudulent claims 6. no sensible or just stopping point if claim is allowed

Question 36

res ipsa loquitur

Answer 36

the thing speaks for itself elements which permit you to infer from the accident itself and the surrounding circumstances that the defendant was negligent unless the defendant offers a satisfactory explanation otherwise the necessary elements to show this presumption of negligence based on res ipsa loquitur

Question 37

elements to show the presumption of negligence (res ipsa loquitur)

Answer 37

1. defendant had control over the circumstances surrounding the event 2. event would have occurred in the absence of negligence 3. no other reasonable explanation for the event offered by defendant which shifts the blame to some other person (burden on defendant to make this showing)

Question 38

job of the judge in a negligence case

Answer 38

to determine duty, proximate cause, and whether a compensable injury was suffered by the plaintiff

Question 39

job of the jury in a negligence case

Answer 39

determine breach of duty, actual cause, allocation of negligence, and compensation for injury (amount of damages) - 5/6 of jury shall agree (criminal negligence jury must agree 100%)

Question 40

blindfold state

Answer 40

judges do not instruct jurors on effect of special verdict answers (what happens to defendant or plaintiff)

Question 41

sunshine state

Answer 41

jury instruction is provided to jurors in a negligence case

Question 42

comparative negligence

Answer 42

the jury is asked to assign 100% blame for the event to the defendant(s) and the plaintiff(s)

Question 43

contributory negligence

Answer 43

if the plaintiff is found at all at fault (even 1%) they cannot recover any damages (only in a few states)

Question 44

pure comparison

Answer 44

recovery strictly governed by the %s of fault assigned by the jury (not followed by a majority of states)

Question 45

modified comparison

Answer 45

plaintiff does not recover if plaintiff's negligence exceeds that of the defendant but recovery is otherwise governed by %s of fault assigned by the jury (followed by a majority of states)

Question 46

several liability

Answer 46

plaintiff's recovery against a defendant is limited to the % of fault assigned to that defendant

Question 47

joint and several liability

Answer 47

each defendant can be held liable for all losses suffered by the plaintiff (but the plaintiff cannot collect more than the amount of the verdict)

Question 48

tort reform of joint and several liability

Answer 48

a defendant can only be held liable for the full amount owed to the plaintiff if the defendants liability exceeds a certain % (In WI its 51%)

Question 49

tort reform

Answer 49

legislative tinkering with traditional tort principles

Question 50

damage caps

Answer 50

limitations on what a jury can award a plaintiff for certain types of damages

Question 51

example of a damage cap

Answer 51

in WI the amount awarded for loss of society/companionship cannot exceed $500,000 for a child and $350,000 for an adult

Question 52

defenses to negligence

Answer 52

1. defense shows that the plaintiff cannot prove all 4 elements of negligence caused the action 2. the contributory negligence of the plaintiff as compared to that of the def.-did the plaintiff's neg. contribute to their own loss? 3. assumption of risk 4. statute of limitations

Question 53

minority rule

Answer 53

any contributory neg. of a plaintiff as a complete bar to a plaintiff's recovery (all or nothing rule) applicable today in only a handful of states

Question 54

majority rule

Answer 54

comparative negligence of the plaintiff-compare neg. of plaintiff and def.- results in proportional responsibility for damages based on jury's allocation of fault. but a plaintiff can never recover from a defendant if that def.'s allocation of fault is less than that allocated to the plaintiff.

Question 55

assumption of risk

Answer 55

did the plaintiff voluntarily and knowingly assume the risk associated with the potential of negligent conduct on the part of the defendant? (when you sit on the 3rd baseline, you assume the risk of being hit)

Question 56

statutes of limitations

Answer 56

a statute exists that requires plaintiff to start lawsuit within a certain period of time