Negligence

Question 1

Negligence

Answer 1

1. Defendant has a duty of care to plaintiff
2. Defendant breached his duty of care
3. Defendant’s breach was the actual and proximate cause of plaintiff’s injury
4. Plaintiff suffered an injury

Question 2

Duty of Care

Answer 2

1. The defendant’s conduct creates a foreseeable risk of injury to the plaintiff
2. Public policy or statute prescribes a duty
3. Special Relationship between the parties

Question 3

Standard of Care

Answer 3

1. General duty of ordinary care

2. Refrain from wanton and will misconduct

Question 4

Duty of Ordinary Care

Answer 4

What would a reasonable person under the same circumstances?

Question 5

Wanton and Willful Conduct

Answer 5

Reckless behavior which disregards the safety of others

Question 6

Unstructured Breach

Answer 6

Defendant does not act like a reasonable person under the circumstances

Question 7

Structured Breach

Answer 7

When the burden of precaution is less than the probability of the injury multiplied by the damage of the injury. Breach=B

Question 8

Negligence Per Se

Answer 8

Violation of a safety statute can establish breach. The statute needs to be (1) a safety statute that (2) prescribes specific conduct which is (3) aimed at preventing the harm suffered, and (4) aimed to protect the class of person the victim falls into.

Question 9

Exceptions to Negligence Per Se

Answer 9

No Negligence Per Se when (a) violation is reasonable because actor’s incapacity, (b) neither knows/should know of the need for compliance, (c) is unable after reasonable diligence to comply, (d) confronted by an emergency not due to misconduct, (e) compliance would involve a greater risk of harm.

Question 10

Re Ispa Loquitur

Answer 10

A jury may infer breach when (1) the type of injury does not normally occur unless there is a breach, (2) Plaintiff or third parties were not the cause, and (3) the indicated breach was within the scope of the Defendant.

Question 11

Common Customs

Answer 11

Common customs do not supplant a duty of ordinary care. However, customs can be used as a defense of breach or proof of breach.

Question 12

But-For-Causation

Answer 12

Breach when but for the Defendant’s conduct, Plaintiff’s injury would have never occurred.

Question 13

Substantial Factor Test

Answer 13

Breach when Defendant’s conduct was a substantial factor in causing Plaintiff’s injury. Courts may use this test when there are multiple defendants because but-for-causation would exonerate them.

Question 14

The Risk Rule

Answer 14

To determine proximate causation, the court looks to (1) were the plaintiff’s injuries the type of harm the risk of which was caused by the breach? and (2) was the plaintiff within the class of persons foreseeably risked by the breach?

Question 15

Palsgraf v. Long Island Railroad

Answer 15

Woman was injured on the platform of a train station when a package exploded after being dropped when train staff were helping another passenger onto a moving train. Cardozo said there was no duty because the woman was not within the “bundle of risks” associated with the railroads conduct when they helped the other passenger onto the moving train. This case laid the foundation for “proximate cause”.

Question 16

United States v. Carroll Towing

Answer 16

Carroll Towing negligently did not have a barge man onboard a barge in New York Harbor. The barge was struck by another ship and sunk. Judge Learned Hand determined Carroll Towing breached because the burden of precaution (having a bargeman on board) was less than the probability of injury (that another boat would collide in the congested New York Harbor) multiplied by the damage of the injury (the ship sinking). In other words, Breach=B