Lecture 2 Flashcards
negligence
- carelessness, but not trying to hurt someone
- most common to be found
tort law
how as a society we react to the inevitable losses as a result of human interaction
what triggers obligation-where does law come from?
- contract terms
- negligence imposed upon us by operating law
negligence (jury instruction)
- fails to exercise ordinary care
- does or fails to do something
- subjecting a person or property to risk of damage
strict liability
-nature of activity determines liability
-absolute liability of defendant regardless of the level of care exercised by the defendant
(encourage people to be careful when engaging in these dangerous activities)
intentional torts
- assault, slander, libel
- defendant intends to cause harm
- knows of consequences
criminal negligence
- “ordinary neg. to a high degree, consisting of conduct that the actor should realize creates a substantial/unreasonable risk of death or great bodily harm to another” (Wisc. Statute 939.25)
- ex: distracted driving
finding a defendant liable to a plaintiff based on neg. is really a matter of ____ ______
social policy
how many defendants are usually in a neg. case?
more than one
contributory negligence
plaintiff contributes to the event and/or the loss suffered
when do claims commonly occur?
the context of an employer/employee relationship
Elements of negligence
1) duty of care
2) breach of the duty of care
3) some kind of harm
4) was the breach the proximate cause of the harm
duty of care
there must be a duty of care owed by the defendant to the plaintiff
foreseeability of risk test
a duty is owed to the plaintiff if the consequences resulting from the defendant’s negligent conduct ought to have been reasonably foreseeability by the defendant
breach of the duty of care
if you conclude that there is a duty of care owed by the defendant then you must show that this duty of care was breached
standard of conduct
- what was the degree of carefulness?
- not based on how people interact but rather what society’s expectations of how people interact
- courts created “a reasonable man of ordinary prudence” as an example person to compare to in trials
duty for trespassers
- anyone on the property w/o consent-property owner is liable to the trespasser only for intentional acts- (liable to person falling in a trap, but not to someone falling in unfenced construction hole)
- exception for children and attractive nuisance situations
duty for licensees
- anyone on the property to serve his/her own purposes but w consent (guests)
- property owner is responsible to the licensee to warn of hidden dangers of which the owner knows
duty for invitees
- anyone on the property as a right because it is a public place/business
- owner is responsible to the invitee to exercise reasonable care in providing a safe place (wet floor signs)
duty for rec/contact sport activities
-did the participant who cause the injury act recklessly or w/ an intent to cause injury?
recklessness
acting w/o intent to cause to inflict the particular harm but in a manner which is so unreasonably dangerous that the person knows or should know that is highly probable that harm will result
neg. of manufacturers of goods
-duty of manu. to exercise ordinary care in the design, construction, and manufacture of its product so as to render such product safe of its intended use
the baseball rule
prohibits a spectator who is injured by a flying baseball from making a claim against the team or other responsible parties b/c they knowingly expose himself to the inherent risks (also applies to hockey)
immunity statutes
cannot be sued although you might be neg.
recreational immunity
limits liability of property owners towards others who use their property for rec. acts under circumstances in which the owner does not derive more than a minimal pecuniary benefit
civil liability exception: emergency care
any person who renders emergency care at the scene of any emergency or accident in good faith shall be immune from civil liability for their acts/omissions in rendering such emergency care
castle doctrine
immune from civil liability if use of force is intended or likely to cause death or great bodily harm if the actor reasonably believed that the force was necessary to prevent imminent death or bodily harm t themself or another person and the person against whom the force was issued was in the process of or unlawfully in the actor’s dwelling
proximate cause
a public policy limitation on your liability for consequences of your negligent acts despite the existence of causation in fact.
but for clause
would the event not have occurred but for the defendant’s conduct?
Wisconsin Statute substantial factor
was the defendant’s conduct a substantial factor in causing the event?
general test of proximate cause
foreseeability- if defendant has breached the standard of care then the defendant is liable for all the foreseeable consequences that flow from the negligent acts either immediately or there after
limitations of proximate cause
unforeseeable consequences/plaintiffs or superseding cause
unforeseeable consequences/plaintiff
could the defendant have reasonably anticipated that his conduct would cause injury or loss? to the particular plaintiff?
superseding cause
a defense to a claim of negligence when a subsequent act by a 3rd person, force, or event supersedes the first actor’s negligence thus becoming a superseding cause relieving the first actor from liability
Wisconsin Public Policy considerations in determining proximate cause
- injury too remote
- injury out of proportion to negligent act
- in retrospect it appears extraordinary that negligence cause the harm
- unreasonable burden on defendant
- lead to fraudulent claims
- no sensible or just stopping point if claim is allowed
res ipsa loquitur
the thing speaks for itself
elements which permit you to infer from the accident itself and the surrounding circumstances that the defendant was negligent unless the defendant offers a satisfactory explanation otherwise the necessary elements to show this presumption of negligence based on res ipsa loquitur
elements to show the presumption of negligence (res ipsa loquitur)
- defendant had control over the circumstances surrounding the event
- event would have occurred in the absence of negligence
- no other reasonable explanation for the event offered by defendant which shifts the blame to some other person (burden on defendant to make this showing)
job of the judge in a negligence case
to determine duty, proximate cause, and whether a compensable injury was suffered by the plaintiff
job of the jury in a negligence case
determine breach of duty, actual cause, allocation of negligence, and compensation for injury (amount of damages) - 5/6 of jury shall agree (criminal negligence jury must agree 100%)
blindfold state
judges do not instruct jurors on effect of special verdict answers (what happens to defendant or plaintiff)
sunshine state
jury instruction is provided to jurors in a negligence case
comparative negligence
the jury is asked to assign 100% blame for the event to the defendant(s) and the plaintiff(s)
contributory negligence
if the plaintiff is found at all at fault (even 1%) they cannot recover any damages (only in a few states)
pure comparison
recovery strictly governed by the %s of fault assigned by the jury (not followed by a majority of states)
modified comparison
plaintiff does not recover if plaintiff’s negligence exceeds that of the defendant but recovery is otherwise governed by %s of fault assigned by the jury (followed by a majority of states)
several liability
plaintiff’s recovery against a defendant is limited to the % of fault assigned to that defendant
joint and several liability
each defendant can be held liable for all losses suffered by the plaintiff (but the plaintiff cannot collect more than the amount of the verdict)
tort reform of joint and several liability
a defendant can only be held liable for the full amount owed to the plaintiff if the defendants liability exceeds a certain % (In WI its 51%)
tort reform
legislative tinkering with traditional tort principles
damage caps
limitations on what a jury can award a plaintiff for certain types of damages
example of a damage cap
in WI the amount awarded for loss of society/companionship cannot exceed $500,000 for a child and $350,000 for an adult
defenses to negligence
- defense shows that the plaintiff cannot prove all 4 elements of negligence caused the action
- the contributory negligence of the plaintiff as compared to that of the def.-did the plaintiff’s neg. contribute to their own loss?
- assumption of risk
- statute of limitations
minority rule
any contributory neg. of a plaintiff as a complete bar to a plaintiff’s recovery (all or nothing rule) applicable today in only a handful of states
majority rule
comparative negligence of the plaintiff-compare neg. of plaintiff and def.- results in proportional responsibility for damages based on jury’s allocation of fault. but a plaintiff can never recover from a defendant if that def.’s allocation of fault is less than that allocated to the plaintiff.
assumption of risk
did the plaintiff voluntarily and knowingly assume the risk associated with the potential of negligent conduct on the part of the defendant? (when you sit on the 3rd baseline, you assume the risk of being hit)
statutes of limitations
a statute exists that requires plaintiff to start lawsuit within a certain period of time
