Negligence Flashcards
Negligence
Duty
Breach of duty
Cause in fact
Proximate cause
Harm
Duty
Reasonable Care under the circumstances
Negligence per se
Physical limitation
Ordinary care
Take limitations into account when making decisions
Mental impairments
Not and excuse for conduct
Held to a reasonable person standard
Negligence per se
Clearly defined regulation
Statute must have intended to prevent harm
Must be a class of people statute protects
Violation must be the proximate cause of the injury
Specific duty
Required standard that must be followed
Excused Violations
Actor was incapacitated
Neither knows nor should know of occasion for compliance
Unable to after reasonable diligence and care to comply
Emergency not from his own conduct
Compliance would involve a greater risk
Breach of Duty
Foreseeability
Seriousness of injury
Alternative conduct
Best position to provide safety
Alternative Conduct Equation
B < PL
Alternative conduct < Foreseeability * Seriousness of Injury
If < breach
If > no breach
Joint and several liability
Contribution
One party pays, other defendants pay that party
Several Liability
No contribution
Each pays their own percentage
Slip and fall
Defendant must have actual or constructive knowledge of dangerous condition
Customs
Can be considered but not determinate
Compliance with a statute
Sets the floor for duty of care
Res Ipsa Loquitor
Negligence can be inferred when the accident causing the harm is the type that happens as a result of negligence
Defense must argue they acted reasonable
Sufficient Control
No more complete control
Consecutive Control
- Shared responsibility
Harm
Has to be actual harm to a person or property
Cause in fact
Linking defendants actions to the plaintiff’s injury
“But for” test
Substantial factor test
“But for” test
But for the defendants actions, the plaintiff’s harm would have never happened
Over 50%
Substantial Factor Test
If the conduct was substantial = cause in fact
3rd restatement use sufficient
Aggravation causation
Split damages
Preemptive Causation
Has to see if they caused the harm
If the fish were already dead, no cause in fact
Harm has all ready taken place
Alternative Causation
Both defendants can be responsible because both were negligent even though only one of them cause the injury
Shifts the burden to the defense
Relaxed causation
Used in only a few jurisdictions
Under 50%
Can still recover
Loss of a chance
Can get a % of damages
Mainly Med. Mal.
Proximate cause
Where to draw the line in cause in fact
Scope of liability
Risk Rule
Direct result of negligence
Scope of liability
Must be fair and proportional
Look at the foreseeability of the harm
Risk Rule
An actors liability is limited to those physical harms that result from the risks that made the actor conduct tortious
Crystal Ball
Direct Result of Negligence
Proximate Legal cause
Ripples in a pond
Plaintiff friendly
Cardozo
Range of apprehension
Not a foreseeable plaintiff
Thin skull
Get the victim how they are
Very duty rule
Failure to adopt adequate precautions against the risk of harm of another’s act
Intervening causes
Foreseeable
Do not auto break the chain
Up to the jury to decide
Not foreseeable
- does break the chain (superseding)
Intervening negligent acts
Negligence was a substantial cause of the events
Foreseeable that negligence would lead to injury
Defendant is liable for any subsequent medical negligence
