Negligence Flashcards
Negligence/When is a party negligent
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
Four Elements of Negligence
- 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. - Breach
- This is a factual question. Did the actor breach the duty of care to this plaintiff? - Causation
- “But For” Cause (factual cause)
- Proximate Cause (legal cause) - Damages
The Reasonable Person Standard
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
Reasonable Person Standard for Beginners and Experts
Beginners held to a standard of a reasonably skilled person
Experts held to a higher standard of care
Reasonable Person Standard for Professionals
Expected to exhibit the same skill, knowledge, and care as another practitioner in the same community
Reasonable Person Standard for Medical Professionals
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
Reasonable Person Standard for Common Carriers
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
Recklessness
Is a conscious disregard of a substantial and unjustifiable risk that represents a gross deviation from a reasonable standard of care
Calculus of Risk
A more economic focus on negligence, focusing on minimizing the costs of litigation and risk prevention for all parties
The Learned Hand Forumla
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
Custom
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
Custom: Medical Malpractice
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
Locality Rule
Members in a profession are judged by what other professionals in the area do, not what the entire members from the profession does
Negligence per se
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
License Exception
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
Proof of Negligence
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
Res Ipsa Loquitur
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
Negligent Infliction of Emotional Distress (NIED)
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
