Negligence

Question 1

What are the 5 elements of negligence?

Answer 1

1. Duty owed
2. Breach of duty
3. Actual harm
4. Factual cause
5. Proximate cause

Question 2

What is the basic standard of duty?

Answer 2

The reasonable and prudent person standard

Question 3

What does the reasonable person standard mean?

Answer 3

General duty to act as a reasonable person would under the given circumstances to avoid or minimize risk of harm

Question 4

What is the standard of care for minors?

Answer 4

Held to the same standard as a reasonable minor in the same circumstances

Question 5

What is the exception to the reasonable minor standard?

Answer 5

When engaging in dangerous adult activities → reasonable person standard

Question 6

Does physical disability impact the standard of care?

Answer 6

Yes → care that a reasonable person with a similar disability would exercise

Question 7

Do heightened knowledge or abilities impact the standard of care?

Answer 7

Yes → he is required to exercise the superior qualities that he has in a reasonable manner

Question 8

What factors are not taken into account for the standard of care?

Answer 8

Old age, intoxication, mental disability

Question 9

What elements do negligence per se satisfy?

Answer 9

Duty and breach

Question 10

What are the four requirements of a statute to be given per se effect?

Answer 10

1. Statute must clearly define the standard of care
2. The injured person must be within the class of persons the statute designed to protect
3. The type of harm must be the type the statute designed to protect from
4. The violation must have been the proximate cause

Question 11

How is the breach analysis framed?

Answer 11

Foreseeability → if the actors conduct created a foreseeable risk

Question 12

What is Hand’s risk utility formula?

Answer 12

Breach = burden < loss x probability

Question 13

What are the 3 ways to show negligence in slip and fall?

Answer 13

1. The defendant created the hazard and failed to take steps to abate the hazard
2. The defendant discovered or should have discovered the hazard created by someone else and failed to abate
3. The defendant’s business made it foreseeable that others would create a dangerous condition and failed to discover the hazard

Question 14

What are the 3 elements of res ipsa loquitur?

Answer 14

1. The accident producing the injury was one which does not ordinarily happen without some negligence
2. The agent which caused the accident was under exclusive control of the defendant
3. The accident was not contributed to by any part of the injured person

Question 15

What is the test for factual cause, and what does that test say?

Answer 15

But for test: whether the injury would have happened but for the defendants conduct

Question 16

Duplicative cause?

Answer 16

Two causes of injury are so similar that either would have caused the damage, so both liable

Question 17

Preemptive cause?

Answer 17

Two cause so different that the second preempts the first → only second liable

Question 18

Is but for test required in medical malpractice where the person lost a chance of survival or recovery?

Answer 18

No, the loss of chance resulting from the negligent conduct is itself the cause of action

Question 19

Traditional rule for loss of chance?

Answer 19

Chance of survival less than 50%, no liability or damages

Question 20

Relaxed causation rule in loss of chance?

Answer 20

Chance of survival less than 50%, liability and full damages as long as there was a substantial chance of survival

Question 21

Quantified value of chance rule in loss of chance?

Answer 21

33% chance of recovery → liability and damages proportionate to the percent of survival

Question 22

What is the guiding question of foreseeability in scope of liability?

Answer 22

Given that the defendant acted negligently, was it foreseeable that the conduct would have resulted in this type of harm?

Question 23

Rescue doctrine?

Answer 23

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

Question 24

Thin skull rule?

Answer 24

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

Question 25

Does an intervening act automatically break the causal chain?

Answer 25

No, the intervening act must be considered superseding

Question 26

When should an intervening action relieve the first of liability?

Answer 26

Only when the resulting harm is outside the scope of risk negligently created by the first actions

Question 27

Termination of risk?

Answer 27

When the defendant’s conduct created a risk, but the situation normalized and the risk ceased to exist

Question 28

What is the majority rule in assessing responsibility when more than one defendant is negligent?

Answer 28

Joint and several liability

Question 29

Joint and several liability?

Answer 29

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

Question 30

Several liability?

Answer 30

Plaintiff can only recover damages from each defendant proportionate to the damage they each caused