Negligence

Question 1

What generally constitutes negligence?

Answer 1

Any unreasonable conduct that causes harm to others

Question 2

What are the 5 elements of negligence?

Answer 2

1. The defendant owed the plantiff a legal duty
2. The defendant, by acting negligently breached that duty
3. The plaintiff suffered actual damage
4. The negligence was a factual cause of this damage
5. The defendant’s negligence was a “proximate casue” of the damage, or was within the “scope of liability” of the defendant

Question 3

Does there exist a higher duty of care for engaging in dangerous activities?

Answer 3

No. There is only one duty: reasonable duty. Engaging in a dangerous activity would reasonably make an ordinary person take more care.

Question 4

What would operate as a defence to having a duty towards others?

Answer 4

An emergency situation. In such a case, the defendant would still be expected to respond reasonably to the emergency.

Question 5

What about negligence for people with disabilities? ex. blindness

Answer 5

The duty owed would be adjusted to what a reasonable blind person would have done/percived

Question 6

Does being mentally incapable adjust the duties they owe to others?

Answer 6

No

Question 7

Does having a particular field of expertise adjust the duty owed?

Answer 7

Yes. They are expected to exercise superior care

Question 8

Do minors have an adjusted duty of care?

Answer 8

It can depend on the circumstance/how far below the age of majority they are. Either they will be judged as an adult, or compared to what a reasonable person of the same age would be expected to do

Question 9

What is negligence per se?

Answer 9

If a law defines criminal liability, or a civil standard regulation that replaces what duty is owed in that jurisdiction over the common law standard for duty.

Question 10

What 4 things are required to establish negligence per se?

Answer 10

1. The statute must clearly define the required standard/conduct
2. The statute must have been intended to prevent the kind of harm the defendant’s act/omission caused
3. The plaintiff must be a member of the class of persons the statue was designed to protect
4. The ciolation must have been the proximate cause of the injury

Question 11

Give an example of when negligence per se would replace the common law duty standard

Answer 11

If a local landfill is required by state regulations to have fencing in order to keep the general public out, the landfill doesn’t have that fencing and members of the general public get in, get hurt and wouldn’t have gotten hurt but-for that lack of fencing, the regulation would have created a duty on the part of the landfil

Question 12

Does an emergency excuse negligence per se?

Answer 12

Yes

Question 13

If a defence for an intentional tort is proven, what happens? What happens for a defence to negligence?

Answer 13

If proven, a defence for an intentional tort results in no damages being awarded. For negligence, it can only reduce damages

Question 14

When will the law will measure a person’s conduct to determine if there is a duty?

Answer 14

When the law will measure a person’s conduct
* There is no basis in alw to shift liability to someone else
* Creation of risk of physical harm to another
* Special relationship to another who is harmed (passenger carrier)
* Special relationship with person posing risks (mental health professional with patients, parent and child)
* Undertaking to reduce risk of harm to antoehr
* Taking sharge of the other (beginning rescue or render aid and putting the erpson in a worse situation)

Question 15

What is the standard of care the law will set?

Answer 15

• Use a reasonably prudent person standard
• A general duty of care

Question 16

Of the elements of negligence, which is the one most carefully considered by the jury?

Answer 16

proximate causation

Question 17

What constitutes the breach of a duty?

Answer 17

Any conduct that creates an unreasonable risk of harm which the tortfeasor should have been able to perceive, but did not

Question 18

If a person is aware of a danger and proceeds anyway, is that negligence?

Answer 18

Depends on the hand formula (burden vs harm), but generally yes. If a person is put on notice that a danger exists, they are expected to reasonably avoid it

Question 19

Is reasonable care under the circumstances a fixed concept?

Answer 19

No. It should be flexible. Ex. a statute might override a common law duty and what would constitute a breach of it

Question 20

If a danger is unforeseeable, is it a breach to proceed?

Answer 20

No. ex. lawnmower fire case. When someone is faced with an emergency not of their own making, they are not liable if they respond according to their best judgment

Question 21

Are employers in breach if they do not provide a safe working environment?

Answer 21

Yes, but only if the workplace is unreasonably unsafe. An employer is not required to make a workplace 100% safe as that is a great burden

Question 22

• Ddefendent built a home with a deck and stairway running down to the 1st floor
• Building inspector gives the certificate of habitability
• Then someone comes over to rent it. Someone on the steps trips nad falls. Wants to sue for negligently constructing the steps. Turns out the steps were not built to code. Sues owner for negligence per se.
• Is there an excuse for negligence per se because they had an insopector coming out?

Answer 22

yes

Question 23

What is the hand formula?

Answer 23

is the burdneon the defendant greater or lesser than the probability and loss inflicted on the plantiff?
- The higher the burden of cost and rrisk, the lower the probability and loss
- Defendents re not expected to go above and beyond to reduce risk, only a reasonable amount

Question 24

What kind of hair must the planitff suffer in a negligence suit?

Answer 24

legally compensable harm

Question 25

If there is no proof of actual damages, what happens?

Answer 25

The plaintiffs loses

Question 26

What is factual causation?

Answer 26

plaintiff must prove that the defencents actions/ommissions factually resulted in the harm they suffered

Question 27

For facial causation, if there is a genuine issue of the harm was inevitable, has cause-in-fact been established?

Answer 27

No

Question 28

Is the but-for test used for factual causation, or proximate causation?

Answer 28

Factual causation. However, but-for can assist in determining if it is fair to hold the defendant responsible. ex. if there are too many links in the causal chain

Question 29

What is the but-for test?

Answer 29

• We imagine a world in which the defendant didn’t do the negligent act, and ask if the plantiff would still be harmed. If so, then the test is failed, and there is no liability ofr lack of causation

Question 30

What is the problem with the but-for test?

Answer 30

When more than one party is possibly liable. Ex. hunters in the Forrest shooting bind, and one of them hits a person

Question 31

What happens when multiple parties are equally negligent, but it is unknown who actually caused the harm?

Answer 31

Liability will attach to all negligent parties

Question 32

What is loss of substantial chance?

Answer 32

For medical malpractice cases, if the plaintiff can prove that the doctor’s actions were a SUBSTANTIAL FACTOR in the patient losing a chance at a better outcome, then the doctor will be liable for the percentage of that loss, even if it is below 50%

Question 33

How does harm differ from injury in intentional torts?

Answer 33

• Unlike intentional torts where there is no requirement for actual physical loss, negligence requires actual loss to person or property

Question 34

What is the general rule of thumb for calculating non-economic damages?

Answer 34

x3 of whatever the economic damages are

Question 35

What are the 4 elements of multiple sufficient causes, which would render the but-for test inapplicable?

Answer 35

1. Independent
2. Concurrent
3. Sufficient
4. Producing an indivisible injury

Question 36

For establishing multiple parties liable for one party’s negligent act (ex. hunters in the forest), what is the critical element?

Answer 36

All parties must be engaged in some NEGLIGENT activity. If one party among many is not acting negligently, they cannot be held liable.

Question 37

What is proximate cause exactly? What must the plaintiff prove?

Answer 37

plaintiff must prove that their harm resulted from the risks that made the defendant’s conduct negligent in the first place – this is the proximate/legal cause

Question 38

What happens if the harm that befell the plaintiff was not within the scope of the risk created by the defendant?

Answer 38

The plaintiff loses

Question 39

Give an example of a failure of proximate cause

Answer 39

If a parent has ineffective birth control, and years later, their child burns the house down, the parent likely couldn’t sue the contraception company for the property loss.

Question 40

Is there liability for unforeseeable risks?

Answer 40

no

Question 41

Susan suffers a heart attack and dies when the ambulance did not arrive in time. Her estate files a wrongful death suit against the city, which argues that it shouldn’t be held liable for the death because the ambulance was delayed due to a collision with a drunk driver. Who wins?

Answer 41

Likely the city, if it is found that the collision with the drunk driver was unforeseeable

Question 42

According to Palsgraffe case, a risk ___ creates ___ to be ____. Failure to do this creates liability

Answer 42

A risk reasonably perceived creates a duty to avoid the risk.

Question 43

What are the factors that are looked at for proximate cause?

Answer 43

1. Way harm came about
2. Entent of harm
3. Intervening acts – intentional
4. Intervening acts - neglegnece

Question 44

What are the 3 tests for proximate cause?

Answer 44

1. Risk rule
   - Range of harms
2. Foreseeability
   - Way harm came about
   - Type of harm that was suffered
3. Substantial factor (multiple causes)
   - Number of other causes
   - Time frame
   - Superseding causes

Question 45

Garrett purchases a waterproof electric toy boat, and sets it next to a full glass of water. His brother Gary wants the toy boat and dunks it into the water. Unbeknownst to anyone, the waterproof seal is defective and shocks Gary, causing severe burns. Product liability aside, does Garett bear liability for his brother’s injury?

Answer 45

Not likely. It might be foreseeable that dunking an electric toy in water is dangerous, but the unforeseeable element of the defect should make the risk unforeseeable, negating liability for Garrett.

Question 46

What generally will defeat proximate cause?

Answer 46

An unforeseeable factor.

Question 47

What is the difference between thin skull and crumbling skull?

Answer 47

Thin skull - the defendant must take their victim as they found them. Ex. if the defendant has a peanut allergy and dies due to exposure, the defendant could still be liable for causing anaphylactic shock.

Crumbling skull - however, the defendant will not be liable for pre-existing conditions the plaintiff already has at the time of their injury. Ex. if a person is partially blind, and stumbled into a vat of acid that renders them totally blind, the plaintiff would only be responsible for exacerbating blindness, not the totality of being blind.

Question 48

What is the default rule of duty between the Cardoza and Andrews worldviews?

Answer 48

Andrews. If a person generates a risk of harm, then everyone is a potential victim i.e. everyone owes some duty to someone else.