Negligence

Question 1

Negligence/When is a party negligent

Answer 1

Negligence is a breach of a duty of care owed to another person that results in damages.

When they fail to use reasonable care when they have a duty to do so

Question 2

Four Elements of Negligence

Answer 2

1. Duty
   - This is a legal question. Did the actor owe a duty of care to this plaintiff?
   - is the standard of care that the ∆ needed to conform to that was necessary to prevent the risk.
2. Breach
   - This is a factual question. Did the actor breach the duty of care to this plaintiff?
3. Causation
   - “But For” Cause (factual cause)
   - Proximate Cause (legal cause)
4. Damages

Question 3

The Reasonable Person Standard

Answer 3

A defendant must act as a reasonable person of ordinary prudence under similar circumstances

Disability/Infirmity/Insanity

• standard of an objective reasonable person with the same condition
• exception: the disability was sudden; no forewarning

Children

• Standard of an objective child of the same age, intelligence, and experience
• exception: children engaged in adult activities will be held to a reasonable adult standard

Question 4

Reasonable Person Standard for Beginners and Experts

Answer 4

Beginners held to a standard of a reasonably skilled person

Experts held to a higher standard of care

Question 5

Reasonable Person Standard for Professionals

Answer 5

Expected to exhibit the same skill, knowledge, and care as another practitioner in the same community

Question 6

Reasonable Person Standard for Medical Professionals

Answer 6

Are held to either a local or national standard based on jurisdiction

Did the physician conform her conduct to the customary practice of the average qualified practitioner?

Some jurisdictions now require medical specialists to comply with the national standard while holding general practitioners to the same or similar locale standard

Question 7

Reasonable Person Standard for Common Carriers

Answer 7

Like trains, airlines, hotels, etc. are held to the utmost standard of care because of the level of additional control they have over a customer

Question 8

Recklessness

Answer 8

Is a conscious disregard of a substantial and unjustifiable risk that represents a gross deviation from a reasonable standard of care

Question 9

Calculus of Risk

Answer 9

A more economic focus on negligence, focusing on minimizing the costs of litigation and risk prevention for all parties

Question 10

The Learned Hand Forumla

Answer 10

B (Burden) < L (Injury) x P (Probability)

If the burden of taking a given precaution is less than the probability of a type of injury than the actor is negligent for failing to take the precaution

Question 11

Custom

Answer 11

An actor’s compliance with the custom of the community is evidence that the actor’s conduct is not negligent, but does not preclude negligence

Possible that entire community/industry has lagged in adopting customary practices

It is possible for a company to be customarily negligent

Question 12

Custom: Medical Malpractice

Answer 12

Medical industry sets its own standards of care

(i) Basic norm/knowledge accepted by greater medical community
(ii) Failure by party to follow that basic norm or knowledge
(iii) Such failure caused an injury

Question is factual, and not a matter of opinion for jury

Question 13

Locality Rule

Answer 13

Members in a profession are judged by what other professionals in the area do, not what the entire members from the profession does

Question 14

Negligence per se

Answer 14

An actor is negligent if, without excuse, that actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect

Question 15

License Exception

Answer 15

Ordinarily, the immediate reason for the person’s lack of license is unrelated to the state’s general safety purpose

Not evidence tending to show the actor’s negligence

Question 16

Proof of Negligence

Answer 16

Direct Evidence: States the fact to be proved. It goes directly to the material fact without any inferential steps required

Circumstantial Evidence: States a fact, from which the material fact to be proved is inferred

Question 17

Res Ipsa Loquitur

Answer 17

Means “the thing speaks for itself”

Negligence can be inferred from the existence of the outcome

(Modern Standard) It may be inferred that harm suffered by the plaintiff is caused by negligence if

(i) Event that normally would not occur in the absence of negligence is
(ii) Caused by agency or instrumentality within the exclusive control of the defendant with
(iii) No voluntary action or contribution on the part of the plaintiff

Question 18

Negligent Infliction of Emotional Distress (NIED)

Answer 18

A plaintiff can recover for NIED from a defendant whose negligence creates a foreseeable risk of physical injury to the plaintiff if the defendant’s action causes a threat of physical impact that in turn causes emotional distress. The emotional distress generally must result in some form of bodily harm (e.g., a heart attack).

Threat of impact: The threat of physical impact that causes distress must be directed at the plaintiff or someone in his immediate presence.

Zone of danger: Are you in the potential zone of being touched?

Bystander: A plaintiff who was a bystander also generally cannot recover for emotional distress caused by witnessing the serious injury to (or death of) another person, unless the bystander is within the zone of danger., and is a close relative