Negligence Flashcards
Negligence
Any conduct that creates ad unreasonable risk of harm to others
- Duty
- Breach
- Harm
- Factual Cause
- Proximate Cause
Duty
Defendant owed a duty of care to Plaintiff
Breach
Defendant breached that duty
Harm
Plaintiff suffered cognizable harm
Factual Cause
Defendant’s conduct is the factual cause of Plaintiff’s harm
Proximate Cause
Defendant’s conduct is the proximate cause of Plaintiff’s harm
Standard of Care
- Reasonable care under the same or similar circumstances
- Reasonable Prudent Person under the same of similar circumstances
Duty: Circumstances Taken into Account
- Dangerous Instrumentality
- Emergency Situation
- Physical Limitations
- Extra Strength or Agility
- Special Skills/Professional Training
- Childhood: Age, Maturity, Intelligence, Experience, Mental Disability
Duty: Circumstances NOT Taken into Account
- Mental disability or impairment
- Low IQ
- Forgetfulness
- Intoxication
- Novice Status
- Cluelessness
- Childhood: if child is engaged in an inherently dangerous activity
Breach
Whether defendant’s conduct foreseeably risks some type of harm to someone such that the conduct should have been avoided or precautions should have been taken
Foreseeability
Harm is foreseeable and too likely to occur to justify risking harm without adequate precautions
Unforeseeable
Harm is foreseeable but a Reasonable Person would not have taken action to prevent it because the risk is so low and the harm is improbable
Cost Benefit Analysis Test: Implicit CBA
Magnitude of Risk + Gravity of Risk
vs.
Utility of Defendant’s Conduct + Cost of making Defendant’s conduct safer
Cost Benefit Analysis Test: Explicit CBA
- Liability should be imposed when the burden of precaution is less than the probability of harm times its magnitude
- B less than PL
Slip and Fall
Plaintiff must prove:
- Defendant created dangerous condition, or
- Defendant had actual or constructive knowledge of the dangerous condition
Safety Manuals
- Failure to follow your own precautionary steps or procedures is not failure to exercise ordinary care
- Jury may consider manuals as evidence
Custom
Can prove:
- Harm was foreseeable
- Defendant knew or should have known risks
- Risk was unreasonable unless precautions taken
Negligence Per Se
Statute with standard of conduct was violated by Defendant and violation caused Plaintiff’s injuries
NPS: Duty
Statute with a standard of care
NPS: Breach
Defendant violates the statute
NPS: Evaluation
- Must clearly define required standard of conduct
- Intended to prevent type of harm Defendant’s act or omission caused
- Plaintiff must be member of class of persons it’s designed to protect
- Violation must be cause of injury
NPS: Excuses
- Incapacity
- Ignorance
- Inability
- Emergency
- Greater Risk of Harm to actor or others with compliance than with violation
Joint and Several Liability
- Plaintiff can recover 100% from any party
- That party then gets reimbursed by other parties
Several Liability
-No tortfeasor is liable for more than his proportionate share
Insolvent or Immune Tortfeasor
-Requires solvent tortfeasor to pay the insolvent, uninsured, or immune tortfeasor’s share
