Torts: Negligence and Causation Flashcards

A statute requires all swimming pools to be enclosed by a fence of at least four feet. A pool owner builds a three-foot fence. A child climbs it and drowns. The court applies negligence per se. What must the plaintiff still prove?

Answer: That the statutory violation caused the plaintiff's damages and that plaintiff is in the class the statute protects

Negligence per se establishes the breach element, but plaintiff must still prove causation, damages, and that they belong to the class the statute was designed to protect.

A surgeon operates on the wrong knee due to a pre-operative marking error by a nurse. The plaintiff cannot prove exactly what happened during surgery. Which doctrine may allow the case to proceed?

Answer: Res ipsa loquitur

Res ipsa loquitur permits an inference of negligence when the injury would not ordinarily occur without negligence, the instrumentality was in defendant's control, and plaintiff did not contribute.

A defendant negligently starts a fire that destroys a plaintiff's house. Unbeknownst to either party, a separate arsonist had also set a fire that would have destroyed the same house at the same time. Which causation test applies?

Answer: Substantial factor test — defendant is liable because their fire was a substantial factor in the destruction

When two independent sufficient causes each would have caused the harm, courts use the substantial factor test because the but-for test would exonerate both tortfeasors.

A school fails to supervise students during recess. One student hits another with a stick, injuring her eye. What is the most accurate statement regarding the school's duty?

Answer: Schools owe a duty to supervise students and prevent foreseeable harm from student conduct

Schools stand in loco parentis and owe students a duty of reasonable supervision, including protection from foreseeable harm caused by other students.

A plaintiff sues for emotional distress after witnessing her child struck by a negligently driven car. She was not in the zone of physical danger herself. Under the majority bystander rule (Thing v. La Chusa factors), what must she show?

Answer: That she was present at the scene, closely related to the victim, and personally observed the injury

Under the majority bystander NIED rule, recovery requires close relationship to the victim, contemporaneous presence at the scene, and direct sensory observation of the injury.

A contractor negligently cuts a gas line, causing an explosion at a nearby restaurant. The restaurant owner suffered property damage and lost profits for three months. Can the owner recover lost profits under negligence?

Answer: Yes, because the property damage provides the hook for all consequential losses

Where the plaintiff suffers physical property damage, consequential economic losses flowing from that damage are recoverable as part of total damages.

Under the rescue doctrine, a firefighter is injured while rescuing victims from a negligently caused building fire. The building owner argues the firefighter assumed the risk. What is the most likely result?

Answer: The firefighter recovers because the rescue doctrine abolishes assumption of risk for rescuers responding to the tortfeasor's negligence

The rescue doctrine holds that a negligent defendant who endangers a person is liable to rescuers injured in the rescue, and assumption of risk is typically unavailable against rescuers.