5. Negligence

Question 1

Elements of Negligence

Answer 1

1. Duty
2. Breach
3. Causation
4. Damage

Question 2

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

Answer 2

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

Question 3

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

Answer 3

The P must show that the D failed to live up to the duty

Question 4

To whom does one owe a duty?

Answer 4

To foreseeable victims, and no one else

Question 5

When might a D owe a duty to an unforeseeable victim?

Answer 5

When the unforeseeable victim is a rescuer (their motive is to provide aide and assistance)

Question 6

How much care does one owe to a foreseeable victim?

Answer 6

One must exercise the same degree of care as would be taken by a hypothetical reasonably prudent person acting under similar circumstances

Question 7

Does the Reasonable Prudent Person standard consider whether the D was capable or incapable of living up to the standard?

Answer 7

No

Question 8

When may he D be held to a different standard of care than that of a Reasonable Prudent Person?

Answer 8

1 If the Defendant had superior skill or knowledge on any manner leading up to the accident, the standard becomes a reasonably prudent person with that same skill or knowledge.

2. The Defendants physical characteristics become part of the analysis when they are relevant (Ex: blind, paralyzed, height, etc.)

Question 9

How does a P satisfy the “Breach of Duty” element?

Answer 9

P identifies what the D did wrong, and offers an explanation as to why it falls below the standard of care.

Question 10

Elements of Res Ipsa Loquitor

Answer 10

1. Prove that the accident that occurred is normally associated with negligence,
2. The P must show that an accident of this type is normally due to the negligence of someone in the D’s position

Question 11

What does successfully using the Res Ipsa Loquitor argument achieve?

Answer 11

This is only used to withstand a motion for directed verdict. — It does not mean the P wins

Question 12

Two Part structure of causation:

Answer 12

1. Factual causation

2. Proximate Causation

Question 13

Test for Factual Causation

Answer 13

The “but for” test — Can it be said that but for this breach, P would be uninjured today?

Question 14

Two exceptions to Factual Causation

Answer 14

1. Mingled Causes

2. Unascertainable Causes

Question 15

Mingled Causes Exception to Factual Causation

Answer 15

A case where there are 2 or more D’s, and each D committed a careless act, and combined together they harm the P. P sues both Ds.

We do not use the “but for” test for these, we ask whether each breach, by itself, could have caused the injury by itself? If so, it is a substantial factor, and that D should be held liable

Question 16

Unascertainable Causes Exception to Factual Causation

Answer 16

In an unascertainable cause case, the burden of proof shifts to the D’s to prove that their act did not cause the injury, even though they are both have only a 50% chance of causing the injury.

Question 17

Test for Proximate Causation

Answer 17

Foreseeablity — Was the harm foreseeable?

Question 18

Three guidelines for determining foreseeability:

Answer 18

1. Passage of time: the more time that has elapsed, the greater chance the outcome in question was unforeseeable.
2. Physical distance: events that happened near the breach, are more foreseeable than events that happened far away.
3. Number of intervening events: the more intervening events that take place, the more unforeseeable the outcome

Question 19

Four fact patterns that have precedent and are well-settled — Under all of them, the outcome was foreseeable, and the P wins

Answer 19

1. Cases involving intervening medical negligence
2. Intervening Negligent Rescue
3. Intervening Reaction or Protection Forces
4. A Subsequent Disease or Accident

Question 20

When may Punitive Damages be awarded?

Answer 20

Only available for intentional torts, or in cases where the P shows reckless conduct.
None can be awarded for a simple negligence case.

Question 21

Eggshell Skull principle

Answer 21

A D who has committed all the other elements of negligence is going to be liable for all the harm suffered by the P, even if it is surprisingly large in scope