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MBE Found. Torts II

Negligence and Defenses

TermDefinition
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