Neglegence Flashcards
Neglegence
Lack of reasonable care (51% to find liability)
(N) Elements
- Duty - to use standard of care (SOC)
- Breach - an act or omission that fails to conform to the SOC
- Causation - reasonably close causal connection between the conduct + injury/ consequences
i. cause in fact (actual)
ii. Legal (proximate cause) - Damages - actual loss, or injunction
[1] Duty [barf]
to use the [applicable] standard of care of a reasonable prudent person in the circumstances to protect reasonably foreseeable P’s against unreasonable harm
Duty - SOC (2)
Reasonable person of ordinary prudence = traditional reasonable care.
- reasonable care - you are deemed to know what the community knows; general customs; general laws of the universe
- Exceptions - Intellectual professionals (Atty, Dr); child doing child activities; land occupiers, etc.
(N) Intellectual Professional - Duty SOC/ Reasonable care
Skill training and knowledge of an ordinary member of the profession in good standing.
- ATTNY- need to prove that P would have won the case if weren’t for atty’s N
- Dr - …standard of care within the same community. [ also duty of consent]
(N) child - duty SOC/ reasonable care
Age; IQ; experience of child of same age
(N) Per Se
Use when a statute is involved, but must meet the 4 elements to apply 1. Is P in the class the statute was designed to protect?
- Is the statute designed to prevent the injury that occurred?
- Is there a causal connection between the violation of the statute and the injury?
- Does the statute set a measurable standard?
[5. excuse - emergency; danger to follow statute; impracticability]
PG v. BU
Use to assess if SOC has been met. 4 parts
- P - Probability of harm arising from (N) act
- G- Gravity of harm arising from (N) act
- B- Burden of changing (N) act
- U- Utility/ Usefulness to society of D performing (N) act
If PG > BU then breach of SOC
Res Ipsa Loquitur [RIL]
[falls under duty - SOC]
- The act infers (N) if the harm that occurred doesn’t meet ordinarily occur unless someone is (N) and it is more likely then not that this D was responsible.
- No idea how it happened, based upon common experience.
When is Res Ipsa used?
No idea HOW it happened - based upon common experience
used with the presumption or inference of (N). 2 parts
1. is the injury more likely then not caused by (N) then intent or accident
2. is it more likely then not that it was D’s (N)
Res Ipsa - Ybarra
case. when D’s are acting in concert because with RIL there can only be one D, the burden of proof transfers to the D’s and if no D is found liable, all are held liable.
(N) Infliction of Emotional Distress
MAJORITY:
Direct Victim - need physical manifestation
Bystander - 1. Physical manifestation
2. Zone of Danger (foreseeable to P?)
3. close relation to victim ( sibling, parent , spouse.)
Minority:
Direct victim - don’t need physical manifistation
Bystander - 1. dont need phys. manifestation
2. Located near & contemporaneous perception (hear, see, smell etc.- must be sensory)
3. close relation to victim
[2] Breach
An act or omission that fails to conform to the Standard of Care (SOC) of Duty.
- Determined by:
1. (N) Per Se
2. PG v BU or
3. Res Ipsa Loquitor - on test hit ea. under duty, if necessary, then briefly discuss whether a breach occurred.
Res Ipsa Loquitor = but…
But for [(N) act], [injury] would not have occurred
[3] Causattion
Reasonable causal connection between act and injury/ consequence.
Causation - [1] Actual cause
you can make the connection between the act and the consequence.
Actual Cause - “But, for”
But for (N) act, injury would not have occurred.
But, For- where more then 1 D INDEPENDENTLY caused injury…(2)
- concurrent causes - where each act alone is insufficient to cause injury, but together do cause injury
- substantial factor - each act alone was sufficient to cause injury, but when they come together we can not tell who was responsible.
Causation - [2] Proximate Cause
Legal cause - is it reasonably foreseeable that the type of injury would arise from the (N) act.
