Negligence

Question 1

Negligence

Answer 1

Any conduct that creates ad unreasonable risk of harm to others

• Duty
• Breach
• Harm
• Factual Cause
• Proximate Cause

Question 2

Duty

Answer 2

Defendant owed a duty of care to Plaintiff

Question 3

Breach

Answer 3

Defendant breached that duty

Question 4

Harm

Answer 4

Plaintiff suffered cognizable harm

Question 5

Factual Cause

Answer 5

Defendant’s conduct is the factual cause of Plaintiff’s harm

Question 6

Proximate Cause

Answer 6

Defendant’s conduct is the proximate cause of Plaintiff’s harm

Question 7

Standard of Care

Answer 7

• Reasonable care under the same or similar circumstances

- Reasonable Prudent Person under the same of similar circumstances

Question 8

Duty: Circumstances Taken into Account

Answer 8

• Dangerous Instrumentality
• Emergency Situation
• Physical Limitations
• Extra Strength or Agility
• Special Skills/Professional Training
• Childhood: Age, Maturity, Intelligence, Experience, Mental Disability

Question 9

Duty: Circumstances NOT Taken into Account

Answer 9

• Mental disability or impairment
• Low IQ
• Forgetfulness
• Intoxication
• Novice Status
• Cluelessness
• Childhood: if child is engaged in an inherently dangerous activity

Question 10

Breach

Answer 10

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

Question 11

Foreseeability

Answer 11

Harm is foreseeable and too likely to occur to justify risking harm without adequate precautions

Question 12

Unforeseeable

Answer 12

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

Question 13

Cost Benefit Analysis Test: Implicit CBA

Answer 13

Magnitude of Risk + Gravity of Risk
vs.
Utility of Defendant’s Conduct + Cost of making Defendant’s conduct safer

Question 14

Cost Benefit Analysis Test: Explicit CBA

Answer 14

• Liability should be imposed when the burden of precaution is less than the probability of harm times its magnitude
• B less than PL

Question 15

Slip and Fall

Answer 15

Plaintiff must prove:

• Defendant created dangerous condition, or
• Defendant had actual or constructive knowledge of the dangerous condition

Question 16

Safety Manuals

Answer 16

• Failure to follow your own precautionary steps or procedures is not failure to exercise ordinary care
• Jury may consider manuals as evidence

Question 17

Custom

Answer 17

Can prove:

• Harm was foreseeable
• Defendant knew or should have known risks
• Risk was unreasonable unless precautions taken

Question 18

Negligence Per Se

Answer 18

Statute with standard of conduct was violated by Defendant and violation caused Plaintiff’s injuries

Question 19

NPS: Duty

Answer 19

Statute with a standard of care

Question 20

NPS: Breach

Answer 20

Defendant violates the statute

Question 21

NPS: Evaluation

Answer 21

• 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

Question 22

NPS: Excuses

Answer 22

• Incapacity
• Ignorance
• Inability
• Emergency
• Greater Risk of Harm to actor or others with compliance than with violation

Question 23

Joint and Several Liability

Answer 23

• Plaintiff can recover 100% from any party

- That party then gets reimbursed by other parties

Question 24

Several Liability

Answer 24

-No tortfeasor is liable for more than his proportionate share

Question 25

Insolvent or Immune Tortfeasor

Answer 25

-Requires solvent tortfeasor to pay the insolvent, uninsured, or immune tortfeasor’s share