Negligence Flashcards
What are the elements of a prima facie claim of negligence? (Q)
Specifically, to establish a prima facie negligence claim, the plaintiff must prove that:
(1) the defendant owed the plaintiff a duty (2) to conform to a particular standard of care
(3) the defendant breached that duty by failing to conform to the applicable standard of care, and
(4) the breach actually and proximately caused
(5) legally cognizable harm to the plaintiff.
For purposes of negligence, what is a duty? (Q)
For purposes of negligence, a duty arises when a person is required to act in a particular way because, if he does not, he might be subject to liability for injury to a person to whom that duty is owed. A person may have a duty to act in a certain way to protect other’s interests or to exercise reasonable care to avoid injuring others.
A duty may arise statutorily or through the common law. Whether a duty exists is a question of law, not of fact.
For purposes of negligence, what is the standard of care? (Q)
The standard of care is the standard imposed by law for the protection of others against unreasonable risk of harm. Unless a special standard of care applies, as in the case of a child actor, the standard of care is that a reasonable person would exercise under like circumstances.
For purposes of negligence, what is the difference between duty and standard of care? (Q)
The difference between duty and standard of care is that once a duty arises, an actor must behave according to an applicable standard of care. The standard of care is not the same in every situation in which a duty exists. In other words, unless a duty exists, no standard of care applies.
For purposes of negligence, does an actor have a duty to everyone? (Q)
No. A majority of states hold that an actor does not have a duty to everyone. Rather, a duty arises if it is reasonably foreseeable that the actor’s conduct might harm someone else.
In general, if a reasonable person would perceive that his conduct places someone at an unreasonable risk of harm, does a duty arise? (Q)
Yes. In general, if a reasonable person would perceive that his conduct places someone at an unreasonable risk of harm, the general duty to foreseeable victims arises. Once the duty arises, the reasonable person would exercise due care.
What is the Cardozo view of the scope of a defendant’s general duty to foreseeable victims? (Q)
The Cardozo view of the scope of a defendant’s general duty to foreseeable victims is that the defendant’s duty arises only when a reasonable person in the defendant’s position could reasonably foresee that someone in the plaintiff’s position might be hurt if the defendant fails to exercise due care. Therefore, a plaintiff may recover only if the plaintiff was in the zone of foreseeable danger that the defendant’s conduct created. The Cardozo view is predominant in American law.
What is the Andrews view of the scope of a defendant’s general duty to foreseeable victims? (Q)
The Andrews view of the scope of a defendant’s general duty to foreseeable victims is that if the defendant’s conduct puts anyone at a reasonably foreseeable risk of harm, then the defendant owes a duty of care to everyone on earth. This necessarily includes anyone whom the defendant’s carelessness may hurt, regardless of whether the victim is within the zone of foreseeable danger. The Andrews view is the minority view.
Under the minority or Andrews view of negligence, what is the test for determining when and to whom an actor has a duty of care? (Q)
Under the minority or Andrews view of negligence, a duty of care arises whenever it is reasonably foreseeable that an actor’s conduct, if not done with reasonable care (i.e., done negligently), could harm someone.
This duty extends to anyone and everyone. Unlike the majority or Cardozo view, under the Andrews view of negligence, the duty of care is not limited to those in the zone of foreseeable danger. Rather, a duty to one is a duty to all. Thus, if an actor has a duty to any one person, then the actor has a duty everyone, and the actor breaches that duty if the actor’s negligence happens to harm anyone.
What is the majority rule for defining the scope of a defendant’s general duty to foreseeable victims? (Q)
The predominant American rule for defining the scope of a defendant’s general duty to foreseeable victims is that a defendant generally owes a duty of care only to foreseeable plaintiffs for foreseeable harms. This is known as the Cardozo view.
Under the Cardozo view of negligence, what is the test for determining when and to whom an actor has a duty of care? (Q)
Under the Cardozo view of negligence, a duty of care arises whenever it is reasonably foreseeable that the defendant’s conduct, if not done with reasonable care (i.e., done negligently), could harm someone.
That duty generally extends only to those whom the defendant’s negligence might reasonably foreseeably harm, meaning those in the zone of foreseeable danger. In contrast to the minority or Andrews view, under the Cardozo view of negligence, the defendant owes no duty to those outside the zone of foreseeable danger, even if the defendant’s negligence does, in fact, harm them.
What are the two major viewpoints regarding the scope of a defendant’s general duty to foreseeable victims? (Q)
The two major viewpoints regarding the scope of a defendant’s general duty to foreseeable victims are the Cardozo view and the Andrews view. The Cardozo view is the predominant American rule, and it defines the scope of a defendant’s general duty to foreseeable victims as owing a duty of care only to foreseeable plaintiffs for foreseeable harms. The Andrews view is that a duty of care arises whenever it is reasonably foreseeable that an actor’s conduct, if not done with reasonable care (i.e., done negligently), could harm someone.
A prospector negligently got himself stuck in an abandoned mine shaft. A passerby attempted to render aid and, through no fault of her own, was injured during the rescue attempt. The passerby sued the prospector for negligence. The prospector moved to dismiss the case, contending that he owed the passerby no duty of care. The jurisdiction follows the majority or Cardozo view of negligence.
Is the prospector correct that he owed the passerby no duty of care? (Q)
No. Under the majority or Cardozo view of negligence, the prospector owed the passerby a duty of care, because it was reasonably foreseeable that the prospector’s negligence might harm a rescuer. Under the Cardozo view, a duty of care flows only to those in the zone of foreseeable danger, meaning those who the negligent conduct might reasonably foreseeably harm. However, if an actor negligently puts himself in danger, it is reasonably foreseeable that a rescuer might get hurt trying to help. Thus, a negligent actor owes a duty to his rescuers. This is sometimes called the rescue doctrine.
Here, the prospector negligently put himself in danger. It was reasonably foreseeable that someone would try to get hurt trying to help. Because it was reasonably foreseeable that this negligence might harm a rescuer, under the Cardozo view, the prospector owed the rescuing passerby a duty of care.
What is negligence? (Feldman)
Negligence is the omission to do something that a reasonable person, guided upon those considerations that ordinarily regulate the conduct of human affairs, would do [the untaken precaution test] or doing something that a prudent and reasonable person would not do [the average reasonable person test].
What values is a reasonable person implied to have? (Feldman)
The reasonable person has a variety of presumed values, such as respect for others’ lives, safety, and property.
