2nd Assessment - Negligence

Question 1

“But for” test

Answer 1

A test for causation that asks whether a particular result would have occurred if it were not for a particular action.–> X is a necessary condition to P’s harm

Question 2

Cause in Fact Burden of Proof

Answer 2

D’s negligence cause P’s harm by preponderance of evidence–>51% or greater!

Question 3

Lost Chance Damages Calculation

Answer 3

1. If prob of survival was 100%, what would be allowable damages if P died?
2. Calculate prob survival before malpractice
3. Calculate prob survival after malpractice
4. Subtract step 3 from step 2
5. Multiply that percentage times full damages from step 1

Court limits loss of chance to med mal because there are good statistics to evaluate

Question 4

“substantial factor” test

Answer 4

A test for causation that asks whether a particular action played a substantial part in bringing about a particular result.–> D’s negligence necessary and sufficient cause of P’s harm

Question 5

Common Law Contributory Negligence

Answer 5

• Traditional approach – if P’s negligence causes (in fact and proximately) injury, then recovery is barred regardless of D’s negligence
• Rationale: don’t want to undermine P’s incentive to take due care by compensating when P is negligent

Question 6

Causation

Answer 6

Actual
(test:But For or A Substantial factor) 
\+ Legal Cause 
 \+ No supersedeing intervening force 
(if unFS intervening act = cuts off liability) 

Eggshell Plaintiff : take it as you find him (no in e.d.)

Question 7

negligence elements

Answer 7

1. duty
2. breach
3. causation
4. harm

reasonable person standard.

Question 8

firefighter’s rule

Answer 8

certain emergency personnel may be barred from recovery.

Question 9

Res Ipsa Loquitor

Answer 9

• Accident wouldn’t usu. occur BUT FOR negligence.
• Caused by agent/instrumentality w/in Defendant’s exclusive control.
• Not to due Plaintiff’s fault.
• (Extended in cases of medical malpractice – joint + severable liability.

Question 10

EXCUSED duty

Answer 10

physical characteristics (blindness), involuntary intoxication, CBA, custom, physicians.

Question 11

PER SE duty

Answer 11

law imposes duty,

• plaintiff must be in class protected be statute.
• the injury that occurred must be the injury the statute was designed to prevent

Question 12

AFFIRMATIVE duty

Answer 12

when assumed (once started can’t stop), creates dangerous situation, authority, special relationship.

Question 13

PROXIMATE CAUSE

Answer 13

continuous, substantial factor, no intervening causes, likely to cause effect, foreseen harm, too remote in time?

Question 14

What are the 4 ways to establish the Reasonable Person Standard (Reasonable Conduct)?

Answer 14

1. Fact-finder (based on the facts of the particular case)
2. Judge made (as a matter of law)
3. Legislatively made (expressly or implicitly providing for civil liability)
4. Judicially declared standard based on legislation

Question 15

What is Legal Malpractice?

Answer 15

Where clients are entitled to expect that their attorney is competent

Question 16

Negligence Per se

Answer 16

whereby an act is considered negligent because it violates a statute (or regulation)

Question 17

What is Res Ipsa Loquitur? RIL

Answer 17

where breach of duty and causation can be inferred

• Usual explanation for the harm is negligence +
• The actor is the most likely source of the Neg

Question 18

What are the 2 types of Evidence when proving negligence?

Answer 18

Direct Evidence (eyewitness testimony)
Circumstantial Evidence (finger prints, skid marks)

Question 19

What are the two types of Causation?

Answer 19

Factual Causation

Legal Causation

Question 20

What is Factual Causation?

Answer 20

a “factual inquiry” into whether Def’s conduct precipitated the injury //

More likely that BUT FOR the Def’s actions - the harm would not have occurred

Question 21

What is Legal Causation?

Answer 21

a “policy inquiry” into whether it’s fair to impose liability on a Def. whose conduct was a factual cause

Question 22

What are the two approaches to determining Legal cause?

Answer 22

1. direct causation - if you are the cause in fact, you are also the legal cause
2. foreseeability - defendant’s actions were what caused the injury and the injury was foreseeable

Question 23

What is direct causation?

Answer 23

where the def is liable for any harm resulting from the Defs tortuous conduct as long as the harm is directly traceable back to the negligent act

Question 24

What is Intervening Cause?

Answer 24

A force that comes into play after the Defs tortuous conduct and contributes to production of the harm and it was a FORESEEABLE result

Question 25

What is Superseding Cause?

Answer 25

An intervening force of the type that cuts off the Def’s liability b/c it was UNFORSEEN

Question 26

What must the P show to satisfy the “Duty” element of Negligence?

Answer 26

The P must show that the D owed a duty of care, and specify what it is

Question 27

Is there negligence?

Answer 27

How would reasonably prudent person acting under similar circumstances have acted

Question 28

Neg Child Test

Answer 28

reasonably careful child of same age, intelligence,
experience.
• Exception – children held to adult standard when engaging in inherently dangerous or adult activities.
• Very young children – Age 3 under incapable of negligence

Question 29

Neg Mentally Disabled / Diminished Capacity

Answer 29

Sometimes take into consideration // history will show if he has it
If Plaintiff , then courts will consider

Question 30

Neg Physically Disabled

Answer 30

reasonable person with a like infirmity

Question 31

Neg Per Se

Answer 31

An Unexcused Violation of a Statute / Borrowing a Statute

-  P belongs to class of persons statute designed to protect
• P's Injury is type statute was designed to prevent

Question 32

Legal Cause –

Answer 32

establishes reasonable connection between act/omission of Def and harm suffered by Plaintiff (an actual cause that is a substantial factor in the
resulting harm).

Question 33

Rescue Doctrine –

Answer 33

Rescuers are foreseeable as a matter of law (so Def

who negligently puts self or third party at risk is liable if rescuer is injured in attempt to help)

Question 34

informed consent obligation

Answer 34

majority: subjective patient rule: physician required to disclose information material to reasonable patient’s decision, considering stated idiosyncrasies, on how to proceed

Question 35

ORPP in Emergency

Answer 35

Standard does not change
Except (1) Where Plaintiff caused emergency through Neg
(2) Plaintiff Fails to anticipate emergency

Question 36

Medical Mal / Professional Neg Standard

Answer 36

Did they act as a member of profession in good standing would have done?

Question 37

Medical Expert Comes from ?

Answer 37

Not community but now National Standard of Care

Question 38

Zone of Danger

Answer 38

Duty runs only to those who are w/in the foreseeable range of danger

Question 39

Neg Per Se EXCUSES

Answer 39

1) Child, Mentally or physically handicapped
2) Actor used reasonable care in attempt to comply
3) Actor couldn’t know or of the factual circumstances (taillight burned out )
4) Statute is confusing
5) greater risk if Actor complied w/ statute - child runs into street / have to swerve into other lane

Question 40

Medical Mal - Loss of Chance Doctrine

Answer 40

Value of life at 100% + offer whatever the Malpractice % deprived him of by death

Question 41

Neg Insane Person

Answer 41

normal reasonable person standard (sane and sober) – / Insanity not accounted for

Question 42

Medical Mal - Medical Custom

Answer 42

Courts usually not intervene

Question 43

Duty Rules - Duty to act to reduce harm

Answer 43

1 - aware of risk
2 - created the risk
3 - constructive notice of the risk // should have known b/c it existed long enough the a reasonable person would have known
4 - Calif == reasonable inspection would have revealed it

Question 44

RIL Elements

Answer 44

a. The instrument that caused the harm was under the control of the Def
+ and +
b. The accident would NOT have ordinarily occurred w/o Neg on part of the Def

Question 45

Medical Mal

Answer 45

To a reasonable degree of medical certainty it caused the harm

Question 46

Independent Multiple Causes

Answer 46

More than 1 cause - it’s “a” cause vs “the” cause //
Truck left in the middle of the highway , driver saw it but did not avoid it (both neg acts) // Def not the only cause… just 1 cause

Question 47

Multiple Sufficient Causes

Answer 47

1 act or the other act would have caused the harm // Neg was the sufficient cause // not necessarily 50% just some % // 2 fire join to burn down a house

Question 48

Independent Multiple Alternative Causes

Answer 48

Shifts the burden to the Def to prove that they didn’t cause the harm // Very similar , very close in time causes // 3 people shoot , 1 dead , 1 bullet

Question 49

Substantial Share of the Market

Answer 49

More than 1 business could have cause d the harm //

Def has a substantial share of the market