Jenkin's Negligence

Question 1

what are the four elements of negligence

Answer 1

duty, breach, causation, and damages

Question 2

describe duty

Answer 2

usually a question of law for the judge; requires one party to confirm to a particular standard of conduct

Question 3

describe breach

Answer 3

could the defendant have acted differently

Question 4

describe causation

Answer 4

actual cause and proximate cause. proximate cause can be foreseeable

Question 5

describe damages

Answer 5

personal injury, property damage, monetary loss, NO nominal damages in negligence cases

Question 6

what is the second restatement of Torts section 291, comment c

Answer 6

“conduct is not negligent unless the magnitude of the risk involved therein so outweighs its utility as to make the risk unreasonable”

Question 7

what is the second restatement of torts section 291

Answer 7

“where an act is one which a reasonable man would recgnoze as involvig a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such mangnitude as to outweigh what the law regards as the utility of the act or oft he particular manner in which it is done”

Question 8

what should the “reasonable person” know

Answer 8

the qualities and habits of human beings/community knowledge at the time and in the community; AND the common law, legislative enactments, and general customs in so far as they are liekly to affect the conduct of third persons

Question 9

what are the basic standard of care primary factors

Answer 9

foreseeable liklihood that the person’s conduct will result in harm and the foreseeable severity of any harm that may ensure and the burden of precaustions to eliminate or reduce the risk of harm

Question 10

what is the formula for negligence

Answer 10

b < P x L [ B is the burden of adequate precautions, P is the probability of harm, L is the loss severity]

Question 11

what does the second restatement of torts section 285 say about where duty comes from

Answer 11

(1) established by a legislative enactment or administrative regulation which so provides, (2) adopted by the court from a legislative enactment or an administrative regulation which does not so provide, (3) established by judicial decision, or (4) applied to the facts of the case by the trial judge or the jury, if there is no such enactment, regulation, or decision

Question 12

the test for negligence is a what one?

Answer 12

objective

Question 13

are mental disabilities applied to the reasonable person

Answer 13

An actor’s mental or emotional disability is not considered in determining whether conduct is negligent- third restatement section 11

Question 14

what is the third restatement of torts section 12

Answer 14

Superior ability- if an actor has skills or knowledge that exceed those possessed by most others this knowledge are circumstances to be taken into account

Question 15

what is the second restatement of torts section 295

Answer 15

when determining negligence, the customers of the community are factors to be taken into account but are not controlling where a reasonable man would not follow them

Question 16

what is the second restatement of torts section 296

Answer 16

in determining whether conduct is negligent, the fact that the actor is confronted with a sudden emergency which requires rapid decision is a factor in determining the reasonable character of his choice of action

Question 17

what are emergency situations while driving

Answer 17

dust cloud/dense fog, moving objects, sudden blocks in the road, sudden swerving of another car, blinding lights, unexpected break failure, stopped vehicles at night with no lights

Question 18

what is the second restatement of torts section 283C

Answer 18

“if the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like disability”

Question 19

describe the second restatement of torts section 283C

Answer 19

So far as physical characteristics are concerned,
the hypothetical reasonable man may be said to
be identical with the actor. Physical handicaps
and infirmities, such as blindness, deafness, short
stature, or a club foot, or the weaknesses of age
or sex, are treated merely as part of the
‘circumstances’ under which a reasonable man
must act. … This is not a different standard from
that of the reasonable man … but an application
of it to the special circumstances of the case.”

Question 20

who is the “reasonable person”

Answer 20

(1) normal intelligence (2) normal perception, memory and at least a minimum standard of knowledge, (3) additional intelligence, skill or knowledge actually possessed by the individual actor, and (4) physical attributes of the actor

Question 21

what are the special circumstances for the basic standard

Answer 21

(1) impact of social custom (2) impact of emergency situations (3) physical disability

Question 22

what is the general rule for the reasonable person applied to children

Answer 22

the standard of care required for children is based upon the age, intelligence, maturity, training, and experience of the child

exception: when a child engages in activities normally undertaken only by adults or in inherently dangerous activities, the child is held to the standard of care of a reasonable adult

Question 23

negligence per se /third restatement of torts section 14

Answer 23

“an actor is negligent if (1) without
excuse, (2) the actor violates a statute (3) that is designed to protect against the type of accident the actor’s conduct causes, and (4) if the accident victim is within the class of persons the statute is designed to protect.

Question 24

what is the role of the judge and jury in negligence per se

Answer 24

judge decides whether a statute is applucable to the case at bar and directs the finding that the statute sets the standard of care that must be followed. the role for the jury is to decide whehter the actor did in fact violate the staute and whether the negligence had a casual relation to the harm suffered

Question 25

what are the majority and minority approaches to negligence per se

Answer 25

Majority: when the judge determines that a statute applies to the facts, an unexcused violation is negligence per se. Minority: violation of a statute is only evidence of negligence, which the jury may accept or reject as it sees fit

intermediate approach: only a few states do it. Violation of a stute gives rise to a “presumption” of negligence, which becomes negligence as a matter of law unless the presumption is rebutted

Question 26

direct v. circumstantial evidence

Answer 26

direct evidence is direct proof of a fact [testimony] circumstantial evudence is indirect evidence that is proof of one or more facts from which one can find another fact

Question 27

what is res ipsa loquitur

Answer 27

a circumstantial-evidence permissive inference allowed by the fact-finder that defenda tmust have been negligence. the accident is a type that ordinarily happens as a result of negligence

second restatement 328D

Question 28

what are the judge and jury roles in res ipsa cases

Answer 28

function of the court to determine whether the inference may reasonably be drawn by the judge. function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reaosnably be reached.

Question 29

what are the three elements of res ipsa loquitur

Answer 29

(1) P must establish the availability of the permissive interference of negligence, (2) P must establish that the negligence was attrivutable to the D, and (3) P must establish that P was not responsible for the injury

Question 30

what is the second restatement of torts section 431

Answer 30

“Causation requires that any proven negligence be a “substantial factor” in causing the harm, but it need not be the SOLE cause of the harm.
-substantial factor: cnoduct that has been an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense in which there always lurks the idea if responsbility rather than in the so-called ‘philosophic sense’…”

Question 31

what are the major issues in causation-in-fact

Answer 31

(1) loss of chance, (2) multiple/joint causes, (3) alternative liability/ibdivisble injuries

Question 32

describe the loss-of-chance doctrine

Answer 32

cases where trhe chance of the P’s recovery is already below 50% [without ngeligence by the D] it is possible to prove causation where any negligence merely reduced the chance of recovery by some percentage

jurisdictions that recognize this doctrine vary how they carry it out. some allow recovery but reduce the amount of recovery by the percentage difference and other providing little or no guidance to injuries

Question 33

describe multiple passive causes

Answer 33

“except as stated in subsection 2, the actor’s passive negligence conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent

second restatement of torts section 432(1)

Question 34

describe multiple active sufficient causes

Answer 34

“if two forces are actively operating, one because of the actor’s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor’s neeglgience may be found to be a substantial factor in bringing it about”

second restatement ot torts section 432(2)

Question 35

what is the majority view to alternative liability

Answer 35

“When the P sues all multiple actors and proves that each engaged in tortious conduct that exposed the P to a risk of phsyical harm and that the tortious conduct of one or more of them caused the P’s harm but the P cannot reasonably be expected to prove which actor caused the harm, the burden of proof including both production and persuasion on factual causation is shifted to the defendants

third restatement of torts section 28(b)

Question 36

what is the indivisible injuries view

Answer 36

Under the restatement’s indivisible-injury theory, multiple tortfeasors may be held responsible for full damage to a P, even twhere the P does not know which portion of the damage was caused by which defendant. the burden shifts to the defendants to show that more likely than not they were not responsible for a portion of the damages

section restatement of torts section 433B

Question 37

what are the 3 approached to historical evolution of proximate cause

Answer 37

Directness-in-time-and-space test; foreseeability test; and scope-of-risk tset

Question 38

describe directness-in-time-and-space test

Answer 38

the injury must occur directly in time and space to the breaching conduct

Question 39

describe foreseeability test

Answer 39

the injury must be foreseeably caused by the defendant’s breach

Question 40

describe the scope-of-risk test

Answer 40

the injury that occurs must be within the scope of the foreseeable risk that was the reason for hoding the actor liable in the first place

Question 41

what are the types of proximate-cause problems

Answer 41

Unforseeable consequences, intervening causes, and public policy determinations

unforeseeable is too remote, intervening is efficient v. inefficient superseding causes, public policy is liability created for broader reasons of public policy

Question 42

what is the eggshell rule

Answer 42

when an actor’s tortious conduct causes physical harm to a person that, b/c of preexisting physical or mental condition or other characteritics of the person is of a greater magnitude or different type than might reasonably be expected, the actor is nevertheless subject to liability for all such harm to the person

third restatement of torts section 31

Question 43

describe intervening v. superseding causes

Answer 43

intervening cause is a new cause that comes into play after the defendant’s negligent conduct. a defendant negligently creates the risk of harm, but the immediate trigger is another person or a force of nature. if an intervening cause breaks the chain of casuation, it is called a superseding cause.

Question 44

What are the unforeseeable superseding causes

Answer 44

criminal acts and suicide

Question 45

what does shifting responsibility do for the person liable

Answer 45

Usually, when a risl is negligently created, the failure of a third person to intervene and take some action to prevent the risk from being realized will not affect the luability of the original actor. The person who failed to prevent the risk from being realized also may be liable if that person also owed a duty to the plaintiff.

Question 46

describe rebuttal and affirmative defenses to negligence

Answer 46

rebuttal defenses make the burden of proof stay with the plaintiff. a successful rebuttal results in a victory for the defendant. affirmative defenses puts the burden of proof on the defendant.

Question 47

what are the three affirmative defenses

Answer 47

contributory negligence; comparative negligence; and assumption risk

Question 48

describe contributory negligence

Answer 48

any negligence by plaintiff results in a total bar to recovery

older minority view

Question 49

describe comparative negligence

Answer 49

negligence by plaintff results in reduced recovery [in some cases, it can still be a total bar to recovery]

majority view

Question 50

describe assumption risk

Answer 50

express v. implied; total bar to recovery

mostly abandoned

Question 51

what are the subversions of contributory negligence

Answer 51

last clear chance rule; very young plaintiffs; mental impairments; negligence per se

Question 52

describe last clear chance rule

Answer 52

where chronology matters, defense must take last chance to avoid

Question 53

describe very young plaintifffs

Answer 53

N/A in cases of intentional or willful, wanton or reckless negligence

Question 54

describe mental impairments

Answer 54

standard of care may be lowered when applied to the plaintiff = no bar

Question 55

describe negligence per se [ subversions of contribytory negligence]

Answer 55

persons whom statute protects [children, intoxicated, mentally impaired] impervious to contributory negligence

Question 56

what are the verieties of comparative negligence

Answer 56

pure (“Full”). Comp. Negligence and Modified (“partial”) Comp. Negligence

Question 57

describe pure (“Full”) Comp. Negligence

Answer 57

no threshold, % of fault reduces

10 states

Question 58

describe modified (“Partial”) Comp. Negligence

Answer 58

50% allowed rule [tie to plaintiff- majority]; 50% bar rule [tie to defendant - minority ]; additional consideration [multiple defendants, collective defendants (Majority) defendant-by-defendant (Minority) ]