Negligence

Question 1

Prosser’s 4 elements

Answer 1

Duty
Breach
Causation
Damage

Question 2

Negligence in simple terms is

Answer 2

Carelessness

Question 3

Unlike intentional torts, Negligence requires that the plaintiff show…

Answer 3

Damages

Question 4

Res Ipsa Loquitor

Answer 4

The thing speaks for itself. Doctrine to prove negligence when lacking evidence

Question 5

Elements of Res Ipsa Loquitor

Answer 5

1) Accident not normally occurring absent negligence AND
2) Exclusive control of instrumentality causing damage
3) Plaintiff did not cause their own harm

Question 6

Types of Causation

Answer 6

Must be factual (but for) cause and legal (proximate) cause

Question 7

Duty created by Criminal Statute

Answer 7

CriMP: statue creates criminal penalty, member of class to be protected, and harm type to be prevented

Question 8

Custom

Answer 8

Custom is evidence that a defendant is conforming to a standard of reasonableness, but it is not dispositive.

Question 9

Hand Formula

Answer 9

B<PL, where B is burden to remediate, P is probability of harm, and L is liability cost. Used to determine reasonableness.

Question 10

Common Law Negligence: Duty

Answer 10

What a reasonable, prudent person would do under the same or similar circumstances.

Question 11

Constructive Notice

Answer 11

A business owner knew or should have known a hazard existed and is so liable for any harm resultant from.

Question 13

Custom

Answer 13

Custom provides evidence of negligence or reasonableness, when followed for the ladder and when deviated from for the former. Not dispositive.

Question 14

Conduct which imposes an unreasonable risk of harm

Answer 14

Negligence

Question 15

The risk reasonable to be perceived defines the duty to be obeyed

Answer 15

Duty

Question 16

Factors for determining when an act is negligent (4):

Answer 16

Social value of interests
Extent of chance conduct will invade interest
Extent of harm that could be caused
Number of persons who could be harmed

Question 17

Religions affect on duty

Answer 17

Does not set a standard of care but is a factor jury is free to consider in determining whether a person acted reasonably in the circumstances

Question 18

duty of care of children

Answer 18

Must act as a child of like age, intelligence, and experience would under the circumstances

Question 19

Mental deficiency and duty

Answer 19

Generally held to same standard as a reasonable, prudent person. Unforeseeable bouts of temporary insanity may be a defense

Question 20

Duty to assist

Answer 20

There is no duty to assist absent a special relationship or being a factor causing harm

Question 21

If you begin to render assistance…

Answer 21

You have a duty to see it through in a reasonable, prudent manner, and will be liable for any additional injuries you may have caused if you do not.

Question 22

__ impose no liability upon a professional

Answer 22

Reasonable errors of judgement

Question 23

Medical Malpractice will enforce liability where

Answer 23

Did what no doctor could do or failed to do what any doctor would do

Question 24

Malpractice is not a ___ standard. For doctors, it is set at the —- level, for lawyers at —-

Answer 24

Local
National
State

Question 25

A patient must have —, and failure to meet this burden will be negligent no matter how successfully the operation proceeded

Answer 25

Informed Consent

Question 26

Informed Consent consists of

Answer 26

Understanding of risks and alternatives. Patient must have made a different choice had they known of these alternatives

Question 27

Exceptions to informed consent

Answer 27

Patient wouldn’t have chosen differently Patient should have known It would have been detrimental had pt known or emergency

Question 28

Unexcused violation of a statute

Answer 28

It may be negligence per se or primia facia evidence of negligence, which can be rebutted

Question 29

Excused violation of a statute

Answer 29

May allow to escape liability if such excuse was valid

Question 30

Compliance with statute

Answer 30

Creates inference D acted reasonably. However, they set a minimum standard of care, and certain special circumstances may require more.

Question 31

Constructive Notice

Answer 31

Evidence, direct or circumstantial, shows that defendant knew or should have known hazard existed. Failure to remove may be negligent.

Question 32

Mode of Operation

Answer 32

The nature of a business may impose a higher standard of care if that nature lends itself to hazards. Can be used to show breach as an alternative theory to constructive notice

Question 33

Spoliation

Answer 33

Where Defendant had a duty to preserve evidence and breached that duty, and it materially affects plaintiff case, the court may offer a remedy depending upon facts. May even allow presumption of negligence

Question 34

But for cause

Answer 34

Harm would not have occurred but for Defendant’s conduct

Question 35

Substantial factor

Answer 35

Defendant was a substantial factor in causing harm

Question 36

Independent Sufficient Cause

Answer 36

May impose liability where conduct was not a but for cause because of an outside factor, but would have caused harm on its own

Question 37

Loss of a Chance

Answer 37

Liability will be imposed if a doctor negligently reduces a patient’s chance of survival, even if that chance was less than likely.

Question 38

Multiple Liability

Answer 38

When there are a few defendants who acted negligently, but plaintiff cannot prove which one caused harm, burden may shift to defendant to prove they didn’t cause harm

Question 39

Joint Liability

Answer 39

Defendant pays percentage of harm they contributed, and never more

Question 40

Several Liability

Answer 40

Defendant pays percentage they caused, and may have to pay more if other defendants die or cannot meet their obligation