Jenkin's Negligence Flashcards
what are the four elements of negligence
duty, breach, causation, and damages
describe duty
usually a question of law for the judge; requires one party to confirm to a particular standard of conduct
describe breach
could the defendant have acted differently
describe causation
actual cause and proximate cause. proximate cause can be foreseeable
describe damages
personal injury, property damage, monetary loss, NO nominal damages in negligence cases
what is the second restatement of Torts section 291, comment c
“conduct is not negligent unless the magnitude of the risk involved therein so outweighs its utility as to make the risk unreasonable”
what is the second restatement of torts section 291
“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”
what should the “reasonable person” know
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
what are the basic standard of care primary factors
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
what is the formula for negligence
b < P x L [ B is the burden of adequate precautions, P is the probability of harm, L is the loss severity]
what does the second restatement of torts section 285 say about where duty comes from
(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
the test for negligence is a what one?
objective
are mental disabilities applied to the reasonable person
An actor’s mental or emotional disability is not considered in determining whether conduct is negligent- third restatement section 11
what is the third restatement of torts section 12
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
what is the second restatement of torts section 295
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
what is the second restatement of torts section 296
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
what are emergency situations while driving
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
what is the second restatement of torts section 283C
“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”
describe the second restatement of torts section 283C
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.”
who is the “reasonable person”
(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
what are the special circumstances for the basic standard
(1) impact of social custom (2) impact of emergency situations (3) physical disability
what is the general rule for the reasonable person applied to children
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
negligence per se /third restatement of torts section 14
“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.
what is the role of the judge and jury in negligence per se
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
what are the majority and minority approaches to negligence per se
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
direct v. circumstantial evidence
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
what is res ipsa loquitur
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
what are the judge and jury roles in res ipsa cases
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.
what are the three elements of res ipsa loquitur
(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
what is the second restatement of torts section 431
“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’…”
what are the major issues in causation-in-fact
(1) loss of chance, (2) multiple/joint causes, (3) alternative liability/ibdivisble injuries
describe the loss-of-chance doctrine
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
describe multiple passive causes
“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)
describe multiple active sufficient causes
“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)
what is the majority view to alternative liability
“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)
what is the indivisible injuries view
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
what are the 3 approached to historical evolution of proximate cause
Directness-in-time-and-space test; foreseeability test; and scope-of-risk tset
describe directness-in-time-and-space test
the injury must occur directly in time and space to the breaching conduct
describe foreseeability test
the injury must be foreseeably caused by the defendant’s breach
describe the scope-of-risk test
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
what are the types of proximate-cause problems
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
what is the eggshell rule
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
describe intervening v. superseding causes
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.
What are the unforeseeable superseding causes
criminal acts and suicide
what does shifting responsibility do for the person liable
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.
describe rebuttal and affirmative defenses to negligence
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.
what are the three affirmative defenses
contributory negligence; comparative negligence; and assumption risk
describe contributory negligence
any negligence by plaintiff results in a total bar to recovery
older minority view
describe comparative negligence
negligence by plaintff results in reduced recovery [in some cases, it can still be a total bar to recovery]
majority view
describe assumption risk
express v. implied; total bar to recovery
mostly abandoned
what are the subversions of contributory negligence
last clear chance rule; very young plaintiffs; mental impairments; negligence per se
describe last clear chance rule
where chronology matters, defense must take last chance to avoid
describe very young plaintifffs
N/A in cases of intentional or willful, wanton or reckless negligence
describe mental impairments
standard of care may be lowered when applied to the plaintiff = no bar
describe negligence per se [ subversions of contribytory negligence]
persons whom statute protects [children, intoxicated, mentally impaired] impervious to contributory negligence
what are the verieties of comparative negligence
pure (“Full”). Comp. Negligence and Modified (“partial”) Comp. Negligence
describe pure (“Full”) Comp. Negligence
no threshold, % of fault reduces
10 states
describe modified (“Partial”) Comp. Negligence
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) ]
