Negligence Flashcards
What are the 5 elements of negligence?
- Duty owed
- Breach of duty
- Actual harm
- Factual cause
- Proximate cause
What is the basic standard of duty?
The reasonable and prudent person standard
What does the reasonable person standard mean?
General duty to act as a reasonable person would under the given circumstances to avoid or minimize risk of harm
What is the standard of care for minors?
Held to the same standard as a reasonable minor in the same circumstances
What is the exception to the reasonable minor standard?
When engaging in dangerous adult activities → reasonable person standard
Does physical disability impact the standard of care?
Yes → care that a reasonable person with a similar disability would exercise
Do heightened knowledge or abilities impact the standard of care?
Yes → he is required to exercise the superior qualities that he has in a reasonable manner
What factors are not taken into account for the standard of care?
Old age, intoxication, mental disability
What elements do negligence per se satisfy?
Duty and breach
What are the four requirements of a statute to be given per se effect?
- Statute must clearly define the standard of care
- The injured person must be within the class of persons the statute designed to protect
- The type of harm must be the type the statute designed to protect from
- The violation must have been the proximate cause
How is the breach analysis framed?
Foreseeability → if the actors conduct created a foreseeable risk
What is Hand’s risk utility formula?
Breach = burden < loss x probability
What are the 3 ways to show negligence in slip and fall?
- The defendant created the hazard and failed to take steps to abate the hazard
- The defendant discovered or should have discovered the hazard created by someone else and failed to abate
- The defendant’s business made it foreseeable that others would create a dangerous condition and failed to discover the hazard
What are the 3 elements of res ipsa loquitur?
- The accident producing the injury was one which does not ordinarily happen without some negligence
- The agent which caused the accident was under exclusive control of the defendant
- The accident was not contributed to by any part of the injured person
What is the test for factual cause, and what does that test say?
But for test: whether the injury would have happened but for the defendants conduct
Duplicative cause?
Two causes of injury are so similar that either would have caused the damage, so both liable
Preemptive cause?
Two cause so different that the second preempts the first → only second liable
Is but for test required in medical malpractice where the person lost a chance of survival or recovery?
No, the loss of chance resulting from the negligent conduct is itself the cause of action
Traditional rule for loss of chance?
Chance of survival less than 50%, no liability or damages
Relaxed causation rule in loss of chance?
Chance of survival less than 50%, liability and full damages as long as there was a substantial chance of survival
Quantified value of chance rule in loss of chance?
33% chance of recovery → liability and damages proportionate to the percent of survival
What is the guiding question of foreseeability in scope of liability?
Given that the defendant acted negligently, was it foreseeable that the conduct would have resulted in this type of harm?
Rescue doctrine?
If you negligently cause someone to be in a position of danger, you Will be liable for injuries caused to the rescuer in the act of rescuing
Thin skull rule?
Take the person as they are → the extent of an injury may be unforesseable, but liability is imposed for the full extent of the injury
Does an intervening act automatically break the causal chain?
No, the intervening act must be considered superseding
When should an intervening action relieve the first of liability?
Only when the resulting harm is outside the scope of risk negligently created by the first actions
Termination of risk?
When the defendant’s conduct created a risk, but the situation normalized and the risk ceased to exist
What is the majority rule in assessing responsibility when more than one defendant is negligent?
Joint and several liability
Joint and several liability?
Plaintiff gets the entire damage award from one defendant no matter the percentage they caused, and that defendant can seek contribution from the other party
Several liability?
Plaintiff can only recover damages from each defendant proportionate to the damage they each caused
