Negligence

Question 1

What are the five elements of Negligence?

Answer 1

1. Standard of Care (duty)
2. Breach of duty
3. Causation
4. Proximate cause
5. Damages

Question 2

Rule statement for Negligence

Answer 2

An individual is negligent when there (1) is a duty to conform to a specific standard of conduct for the sake of the plaintiff (2) that the defendant breaches (3) and that breach is the actual cause (4) and proximate cause (5) of the damage to the plaintiff’s person or property

Question 3

Standard of Care (Duty)

Answer 3

The general standard of care is that of the ordinary, reasonable, and prudent person under the circumstances.

According to the restatement, a person acts negligently if the person does not exercise reasonable care under all circumstances.

Act of third party or natural event causes physical harm to plaintiff that dft has failed to take steps to prevent or ameliorate.

Question 4

Breach of Duty

Answer 4

Where the defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff, they have breached their duty.

Question 5

Causation (Cause-in-fact)

Answer 5

According to the restatement, in order to prove causation, the tortious conduct must be a factual cause of the plaintiff’s harm for liability to be imposed. In other words, in the absence of the act, the outcome would not have occurred.

Question 6

Proximate Cause

Answer 6

According to the restatement, an actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious. In other words, they are only liable for the harm that results as part of the normal incidents of and within the increased risk caused by their act.

Mention foreseeability

Question 7

Damages

Answer 7

Injury to person or property

Question 8

Negligence Per Se

Answer 8

According to the restatement, an actor is negligent per se (1) if they violate a statute that is designed to protect against the type of accident or harm caused by their conduct (2) and, the plaintiff is someone the statute is designed to protect.

Question 9

Res Ipsa Loquitur

Answer 9

According to restatement, in order to establish Res Ipsa Loquitur, the plaintiff must prove that (1) this is the type of accident that does not typically occur without negligence, (2) the thing or instrumentality which caused the accident was at the time of and prior there to under the exclusive control and management of the defendant, and (3) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence.

Question 10

Standard of Care: Superior Skills exception

Answer 10

Restatement 12: If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person.

airplane case

Question 11

Standard of Care: Custom and Usage

Answer 11

From Trimarco and Restatement: Customs may be unreasonable across the industry and policy may be unreasonable across the company, so we can possibly use company policy as an evidence of the standard of care, but this is not determinative.

Question 12

Standard of Care and Forgetfulness…

Answer 12

does not excuse negligence unless other circumstances (such as lapse of time make it reasonable)

Question 13

Standard of Care in Emergency

Answer 13

When acting under emergency, not of own making, in which must suddenly face danger with only a moment to make decisions, can exercise less care than would when have time for “deliberate action.”

The emergency must be sudden, unforeseen, and unexpected

Question 14

Standard of Care: Parties with disabilities

Answer 14

The conduct of an actor with a physical disability is negligent only if the conduct does not conform to that of a reasonably careful person with the same disability.

Intoxication is not a physical disability that limits or negates negligence

An actor’s mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child. HOWEVER, there is a minority of courts that believe an institutionalized mentally disabled patient who cannot control or appreciate the consequences of his conduct cannot be held liable for injuries caused to those employed to care for the patient

Question 15

Standard of Care: Sudden incapacitation

Answer 15

Restatement (Third) § 11(b) The conduct of an actor during a period of sudden incapacitation or loss of consciousness resulting from physical illness is negligent only if the sudden incapacitation or loss of consciousness was reasonably foreseeable to the actor.
Majority: does not have any sort of allowance for sudden and unexpected mental incapacitation

Question 16

Standard of Care: Children

Answer 16

From Restatement:
(a) A child’s conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence, and experience, except as provided in Subsection (b) or (c).

(b) A child less than five years of age is incapable of negligence.

(c) Subsection (a) does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults.

Question 17

Standard of Care: Professional

Answer 17

Professional Negligence is malpractice.
Generally, you are going to measure the individual against an ordinary member of the same profession. However, if they are a specialist, the standard is modified to account for skill.

Expert testimony is generally needed to explain the standard of care of a physician, laywer, architect, etc. EXCEPT FOR WHEN THE NEGLIGENCE IS SO OBVIOUS THAT IT IS WITHIN THE COMMON KNOWLEDGE OF THE JUROR

Question 18

Proving negligence with circumstantial evidence or inference

Answer 18

Plaintiff has burden of proof when establishing prima facie showing and must show that the elements are met for what is being argued

There must be constructive notice

Proof of breach through inference: need not show dft’s actual knowledge of dangerous condition, constructive notice will suffice.

Question 19

Causation: Concurrent Causes

Answer 19

Here, we cannot use the but-for test, even though the dfts caused the injury.

Separate acts have combined to cause injury where neither alone would have been sufficient and where separate acts of negligence combine to produce directly a single injury, each tortfeasor is responsible for the entire result, even though his act alone might not have caused it.

Question 20

Standard of Care: Healthcare

Answer 20

Majority: standard of care of similar community in similar circumstances

Minority: national standard, especially for specialists who are certified by national board within specialty areas

NY: reasonable degree of learning and skill that is ordinarily possessed by drs in the locality where dr practices (compare to Lawyers who are measured against standards in own state). Some jdxs require plts to obtain an expert opinion that standard of care was violated before filing suit, including NY

Question 21

Standard of Care in Healthcare: Informed Consent

Answer 21

Imposes duty on doctors to inform a patient of treatment’s nature, consequences, material risks, and alternatives. If there is no consent to perform any kind of procedure, this is battery. If they obtain consent but breach the duty to inform, this is negligent.

Standard
Majority: what reasonable physician would tell patient (requires expert testimony)
Minority: what reasonable patient would want to know; disclose material risks incident to treatment (material: likely to influence patient’s decision)

FROM MOORE: YOU MUST DISCLOSE PERSONAL INTERESTS UNRELATED TO A PATIENTS HEALTH, WHETHER RESEARCH RO ECONOMIC INTERESTS, THAT MAY AFFECT MEDICAL JUDGMENT

Question 22

Intervening Cause

Answer 22

The chain of proximate cause is broken by an intervening cause (think of Yun case). It can cut off everything/ anything that follows.

When determining whether there was an intervening cause, think of what is unforeseeable, what is not unexpected (Natural and direct result test)

Intervening: adds another party

Question 23

Superseding Cause

Answer 23

Can remove liability if the cause is independent, far removed, etc.
as the injuries were not those associated typically with what occurred.

So think, was it INDEPENDANT and unforeseeable? if yes, it is likely superseding

If it STOPS the proximate cause line, then it is a superseding cause

Severs liability of one party completely.

Think of Alex’s leg getting cut off example (med mal.)