Final

Question 1

What are the 6 elements of negligence?

Answer 1

Duty
Standard of care
Breach of duty
Cause-in-fact
Proximate Cause
Damages

Question 2

What is a duty?

Answer 2

A legally recognized relationship between the parties. The law imposes upon everyone a duty to use due care whenever he or she is engaging in any conduct which creates a risk of harm to others. The element of duty establishes that there is a legally recognized relationship between the D and the P that obligates the D to act (or refrain from acting) in a certain manner toward the P. Duty is assumed unless it is an affirmative duty; then you analyze the duty of defendant under the Rowland factors

Question 3

What is a standard of care?

Answer 3

The required level of expected conduct. Would a reasonably prudent person (RPP) have acted the same way in the same circumstances? Did D act unreasonably? Negligence per se.

Question 4

What is a breach of duty?

Answer 4

D’s act must have breached the required level of expected conduct.

Question 5

What is cause-in-fact?

Answer 5

P’s harm must have the required nexus to the D’s breach of duty.

Question 6

What is proximate cause?

Answer 6

There are no policy reasons to relieve the D of liability. Did D’s unreasonable actions cause P’s injuries?

Question 7

What are damages?

Answer 7

The P suffered a cognizable injury. Was P damaged/harmed?

Question 8

Standard of care: Negligence per se

Answer 8

A statute, ordinance, or regulation can replace standard of care. If the defendant violated the statute, ordinance, or regulation, then he is automatically guilty of negligence. An RPP would have followed the law.

1. ) The statute was designed to protect against the type of harm.
2. ) The class of persons designed to be protected by statute include P.

Question 9

Cause-in-fact: But for test

Answer 9

But for the defendant’s negligence, plaintiff would not have been injured.

Question 10

Palsgraf

Answer 10

Fireworks case. Rule: If there is a foreseeable risk, then D has a duty not to engage in the risky behavior.

Question 11

Rowland Factors (7)

Answer 11

Foreseeability of the harm to the P
Degree of certainty that the P suffered injury
Closeness of the connection between the D’s conduct and the injury suffered
Moral blame attached to D’s conduct
Policy of preventing future harm
Burden to the D and the consequences to the community of imposing a duty
Availability, cost, and prevalence of insurance for the risk involved
Duty is assumed unless it is an affirmative duty; then you analyze the duty of defendant under the Rowland factors.

Question 12

Failure to act

Answer 12

The law does not impose any general “duty to act.” A duty exists if the D is the creator of P’s peril. A duty also exists to warn of danger. No affirmative duty to rescue. Observers don’t have a duty to act (depends on the relationship between D and P).
Standard of care: (1) What kind of duty is required of D? (2) What is the relationship between P and D?

Question 13

Duty exceptions

Answer 13

Special relationships (ex: university-student)
D involved in injury
D as co-venturers/ common pursuit (employment)
Assumption of duty
Always assume duty imposed and then look for a way out.
Was it failure to act and is there an exception?

Question 14

RPP standard special rules (6)

Answer 14

Objective standard (w/o bias, looking as a 3rd party)
Physical characteristics (must be the same for comparison)
Knowledge
Customs
Emergency situations and people’s reactions
Anticipating conduct of others (ex: driving)

Question 15

Standard of care for an intoxicated person

Answer 15

Held to a standard of conduct of a reasonable person of like age, intelligence, and experience under like circumstances that is not intoxicated.

Question 16

Child’s standard of care and exception

Answer 16

A child must merely conform to the conduct of a “reasonable person of like age, intelligence, and experience under like circumstances.”
Exception: If a child is engaged in an adult activity or if the activity is dangerous.
Usually applied to ages under 16 years old.

Question 17

Knowledge (RPP) 5

Answer 17

Ordinary experiences
Stranger to community: knowledge is imputed to a stranger
Duty to investigate (Delair v. McAdoo)
Memory: held to memory standard
Distractions: not distracted unless legitimate reason

Question 18

RPP exceptions for standard of care

Answer 18

Malpractice
Doctors and professionals are held to a higher standard than a reasonably prudent person because they have superior knowledge.
Objective standard for professional (Hodges)

Question 19

Rowland

Answer 19

Bathroom fixture case
Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence. Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition so that he, like the host, will be in a position to take special precautions when he comes in contact with it.

Question 20

Delair

Answer 20

Bald tires case.
Reasonably prudent person standard of care.
It is the duty if one operating a motor vehicle on the public highways to see that it is in reasonably good condition and properly equipped, so that it may be at all times controlled, and not become a source of danger to its occupants or to other travelers. To this end, the owner or operator of a motor vehicle must exercise reasonable care in the inspection of the machine and is chargeable with notice of everything that such inspection would disclose.

Question 21

Hodges

Answer 21

RPP Standard of Care: Custom
Objective standard of care for professionals (an attorney in this case)
An attorney is not liable for an error of judgement or for a mistake made on a point of law, when that point of law has not been settled by the highest court in the jurisdiction. An attorney is liable for loss to the client that results from a lack of knowledge or skill that would ordinarily be possessed by others in the profession, failure to use reasonable care and diligence and failure to exercise good faith. Because the Defendants followed a custom that had been in place in North Carolina regarding service of process for twenty years and because the Defendants had obtained a judicial declaration from the Superior Courts that the Commissioner’s acceptance of service subjected the insurance companies to the court’s jurisdiction, they did not act negligently in prosecuting the Plaintiff’s case.

Question 22

Carroll & Hand Formula

Answer 22

Barges and boats case
This case introduces Learned Hand’s tripartite test for analyzing negligence. The Court explained that liability for negligence in such cases is dependent upon whether the burden of taking adequate precautions is less than the likelihood that an injury will occur multiplied by its gravity. When the burden is less than that product, negligence has been committed.
B<PL
B = Burden of D to prevent injury. Costs of avoiding.
P = Probability of it happening. How foreseeable is the harm causing event?
L = Magnitude of the harm, loss, or injury

Question 23

Res Ipsa Loquitar

Answer 23

Means the thing speaks for itself.
Sometimes plaintiff is injured but there is no evidence.
Probably D’s negligence caused P’s injury.
Probably wasn’t plaintiff’s fault. Plaintiff shouldn’t have to pay.

Question 24

Burn v. Boodle

Answer 24

Plaintiff was walking by a flour company and got crushed by a barrel of flour.
Elements:
1.) The event must be one which would not normally happen unless someone were negligent.
2.) The event was caused by an instrumentality (how the event happened) in the exclusive control D.
3.) Traditionally: The event was not caused by or contributed to by P. –> Contributory negligence/comparative fault –> The event was probably caused by D’s negligence and the P was probably not at fault.

Question 25

Look for these in the fact pattern on exam! (4)

Answer 25

Breach:
RPP & Standard of Care
Hand formula: B<PL
Res Ipsa Loquitor 
Negligence per se