Lecture 4

Question 1

negligence

Answer 1

the failure to exercise the care that a reasonably prudent person would exercise in like circumstances, resulting in harm

Question 2

4 Elements of Negligence

Answer 2

1. Owe a duty
2. Breach a duty
3. Harm
4. The breach of duty is the proximate cause of the harm

Question 3

who has to prove the elements of negligence?

Answer 3

the plaintiff

Question 4

which two elements of negligence prove reasonableness?

Answer 4

owe a duty and breach the duty

Question 5

what is considered reasonable behavior?

Answer 5

common or ordinary

Question 6

you can’t talk about negligence without discussing what?

Answer 6

foreseeability

Question 7

Hand’s rule

Answer 7

cost to prevent harm > (probability of loss x size of loss)

it is not reasonable to fix (you won’t fix it)

Question 8

why modify negligence rules?

Answer 8

it’s either too easy or too difficult for the plaintiff to win

Question 9

defenses against liability

Answer 9

contributory negligence
comparative negligence
assumption of risk

Question 10

contributory negligence

Answer 10

plaintiff gets nothing if they are at all found responsible (Even if it’s like 1%)

Question 11

comparative negligence

Answer 11

plaintiff gets paid the % not at fault and damages (most commonly used)

Question 12

assumption of risk

Answer 12

the plaintiff knew the situation was dangerous (defense pays nothing if they can prove this)

Question 13

punitive damages

Answer 13

not intended to compensate the harm that’s occurred but rather to punish- benefit to society to punish the bad guy

Question 14

what’s an incentive to let the plaintiff keep punitive damages?

Answer 14

incentive to bring on litigation

Question 15

which defense against liability applies?

Answer 15

they will try to use all of them and see which one sticks (or based on state rules)

Question 16

relaxation of the burden of proof

Answer 16

joint and several liability
vicarious liability
res ipsa loquitur
strict liability

Question 17

joint and several liability

Answer 17

• more than one defendant
• unreasonable behavior but unable to pinpoint which behavior was the proximate cause of the harm
• one defendant could potentially pay the full amount

Question 18

vicarious liability

Answer 18

• one party is liable for someone else’s behavior

- employer/employee relations

Question 19

res ipsa loquitur

Answer 19

“the thing speaks for itself”

-burden of proof shifts to the defendant

Question 20

strict liability

Answer 20

• eliminate need to show unreasonableness
• harm/breach - proximate cause of harm
• must show a condition