Negligence Study Questions - Part 1

Negligence

What are the basic elements of negligence?

What is the standard for persons who injure others in an emergency? (Drive in bank case)

What is an "emergency exception" instruction?

Does Missouri allow the judge to give one?

What is the standard for persons with physical disabilities?

What are the standards for persons with mental disabilities?

When is a person with superior skills held to a different standard than an ordinary layperson when performing non-professional activities, i.e., like driving a car?

When might the sex of the plaintiff affect the standard of care?

What are the issues when determining the standard of care for children?

How do you establish custom and deviation from custom?

When is compliance with custom a defense?

How do you defeat custom - the T.J. Hooper situation?

When can the judge take the case from the jury on the issue of whether the defendant complied with custom?

Why would a judge do this?

What is notice?

Why is notice important?

What is constructive notice?

What is a "slip and fall" case and why are they difficult to prove?

How can a banana peel be constructive notice?

What are the elements of res ipsa loquitur in the Restatement?

What is pleading in the alternative and why is it important for res ipsa loquitur?

What is using a statute as standard of care called?

What is the three part test for determining whether a statute can be used to establish standard of care?

What are the five excuses for violation of a statute recognized by the Restatement?

Assume that Mo requires a permit to carry a concealed weapon. To get such a permit, a person has to show why he/she needs a gun for defense in his/her line of work. Fred does not have a permit, but carries a gun anyway. He drops it on the floor when using a public bathroom at a diner. The gun goes off accidentally and injures Mary, who is in the adjoining Women's Room. What are the defenses to negligence per se?

What is negligence per se applied to children?

Is compliance with a statute a complete defense?

Professional Negligence

What is the role of the expert witness in a medical malpractice case?

What is the standard that an expert has to establish for the plaintiff to win?

What are examples of schools of practice and why are they important when evaluating expert testimony?

What are examples of medical specialties and why are they important for expert testimony?

What is the locality rule and how does it apply to specialists?

Dr. Jones is a Board-Certified internal medicine practitioner in the very small town of Cape Hopeless, Mo. Dr. Jones is being sued by Fred, who alleges that he suffered preventable brain damage because Dr. Jones did not order an MRI (magnetic resonance image) of his head after Fred fell off his bicycle. This is a very expensive test that would require Fred to travel to Springfield, 50 miles away. Can Dr. Smith from New York City testify as an expert against Dr. Jones? What is the correct standard to use in determining whether failing to order the MRI was negligent?

What are the elements of a failure of informed consent tort?

What are the two standards for determining what the patient needs to be told?

Which standard does MO use?

What are the problems with a patient bringing a failure of informed consent claim for not being given enough information about an emergency appendectomy? (Assume the patient suffered a severe, but non-negligent complication.)

Duty In Negligence Cases

What are the four situations when there is a duty to help? (Ignore Vermont.)

When can there be a duty to control and protect?

What was the Tarasoff case about?

What duty did the court impose in Tarasoff?

When does this duty apply? - County of Alameda case

Your client was mugged in the common areas of a hotel. What would you have to show to hold the landlord liable?

Your client is mugged in the parking lot at the mall. What do you need to show?

Your client was killed after calling the police for assistance after being threatened by her neighbor. The police said that they would not come to neighborhood disputes unless the neighbor was threatening her and had a gun. The neighbor came back later and killed her before she could call the police again. Are the police liable and why?

Your client hears a burglar and calls 911. The dispatcher says they will send a police car over at once. The police go to the wrong address and assume it is a crank call. You client is killed by the burglar. Are the police liable and why?

Land Occupier Duty

What is a trespasser?

What duty do you owe trespassers?

How is this modified for frequent or known trespassers?

What is the attractive nuisance doctrine?

What are the four elements of the attractive nuisance doctrine?

What is a licensee and what duty are they owed?

What is an invitee and what duty are they owed?

Land-Owner Sample Questions

What class are each of the plaintiffs in and why (argue both sides):

Plaintiff goes into a bar to use the phone.

Plaintiff is a comparison price shopper - someone who is hired by a business to see what prices its competitors are charging. While checking the prices at WalMart as part of a job for Kmart, plaintiff is injured.

Plaintiff is invited to a friend's house for dinner.

Plaintiff is invited to his boss's house for dinner.

Plaintiff is assisting with the girl scout troop at the troop leader's house.

Plaintiff is on the sidewalk (owned by the business) looking into the shop window.

Plaintiff is just walking by on the sidewalk.

Plaintiff is a health department inspector inspecting a restaurant.

Plaintiff is a policeman who has rushed into plaintiff's restaurant after hearing gunfire.

Defendant's tree fell over and hit plaintiff's car that was on plaintiff's land in the city. Liability and why?

Water runs off defendant's unimproved land and floods plaintiff. Liability and why?

Water runs off paved parking lot on defendant's land and floods plaintiff. Liability and why?