Negligence Flashcards
What is negligence?
Negligence is conduct that falls below the standard set by law to protect others from unreasonable risks of harm
What must a plaintiff prove for negligence?
The plaintiff must prove by a preponderance of the evidence that the defendant owed the plaintiff a duty, that the duty was breached, and that the defendant’s conduct was the cause-in-fact and the proximate cause of the plaintiff’s damages
What is by a preponderance of the evidence?
More likely than not (at least 51%). The burden of production is who has to put forth the evidence. In negligence, this is usually the plaintiff. The burden of persuasion is how much evidence must be shown to get a ruling in their favor, and this is more likely than not, or 51%
What is duty?
A legally recognized obligation based on a relationship causing the defendant to regulate their conduct (acts or omissions) to not create unreasonable, foreseeable risks of harm to the plaintiff. The standard of care (how much duty is owed) varies depending on the parties, but the general standard is to act as a reasonable, prudent person would under similar circumstances
What is the standard for children?
Children are held to the standard of a child of like age, knowledge, and experience
What is the standard for doctors?
Doctors are held to the national standard of a reasonable, prudent doctor, and the doctor must have examined the plaintiff
What is the standard for lawyers?
Lawyers are held to a state standard where they are compared to lawyers within their state
What is the standard for a disabled person?
A physically disabled person will be held to the standard of a reasonable, prudent, similarly disabled person
What is a breach of duty?
Breach of duty is when the defendant’s conduct falls below the standard of care owed. Proof of breach may occur when the defendant fails to follow custom, statute (negligence per se), or applicable reasonable standards
What is negligence per se?
A plaintiff must show that 1) they are within the class of person that the statute is meant to protect and 2) the type of harm suffered by the plaintiff was meant to be protected from in the statute
What is res ipsa loquitur?
The “thing speaks for itself.” When using the res ipsa loquitur doctrine, a plaintiff must show that 1) the event that caused the harm would not have happened absent negligence, 2) the defendant was in exclusive control of the instrument that caused the harm, and 3) the plaintiff or third parties did not contribute to the plaintiff’s harm
What is the Hand Formula?
It is mostly used in economic cases. When the burden to remediate the risk is less than the probability that the harm will occur and the damages the plaintiff would receive
What is cause-in-fact?
It establishes a causal relationship between the defendant’s conduct and the harm suffered by the plaintiff, and without the defendant’s conduct, the harm would not have occurred. This is the “but for” test.
What happens if the “but for” test fails?
A plaintiff can still show cause in fact if the defendant’s actions were a substantial factor, or concurrent cause, in causing the harm to the plaintiff
What if there are multiple defendants under the “but for” test?
If multiple defendants control the market segment or risk that caused the plaintiffs harm, enterprise or market share liability, respectfully, may prove cause-in-fact
What is proximate cause?
It limits the defendant’s liability after cause-in-fact has already been shown
What is the foreseeability test (majority)?
Proximate cause might be established under the foreseeability test (majority) if it was foreseeable that the plaintiff could be harmed as a result of the defendant’s conduct or under the directness test (minority) when the defendant’s negligence has a direct chain of events that led to plaintiff’s harm
Can proximate cause be changed?
It is not changed when the foreseeability test is affected by intervening forces. When abnormal and unforeseeable “superseding forces” are present with the plaintiff’s harm, the defendant may be relieved from liability
What damages are available for negligence?
Compensatory and punitive damages because they must be actual and recoverable
What are specific pecuniary damages (compensatory)?
They are measurable damages such as medical bills and lost income
What are general nonpecuniary damages (compensatory)?
They are non-measurable damages such as pain and suffering
How can a plaintiff recover punitive damages?
If they are proven by clear and convincing evidence that the defendant’s conduct was willful, wanton, and reckless
