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Torts > Negligence > Flashcards

Negligence Flashcards

1
Q

What are the elements of negligence?

A

(1) Duty, (2) breach, (3) causation, (4) damages

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2
Q

What is the standard duty of care?

A

The reasonably prudent person

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3
Q

What is the learned hand formula from Carroll Towing for breach?

A

B (burden) < P (probability of accident) x L (seriousness of injury)

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4
Q

Which duties also fulfill the breach requirement?

A

Informed consent, Negligence Per Se, and Res Ipsa Loquitur

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5
Q

What are the four cause-in-fact possibilities?

A

But-For Causation, Concurrent Causes, Substantial Factor, Alternative Causes

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6
Q

How does a proximate cause analysis go?

A

Palsgraf - majority view, minority view, address any possible superseding causes (criminal acts, natural factors, etc)

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7
Q

Is a defendant’s failure to follow a custom evidence of negligence?

A

Yes, but it does not definitely prove negligence

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8
Q

What standard of care is a disabled person held to?

A

The same standard of care that a reasonably prudent person with that disability would have

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9
Q

What standard of care is a child held to?

A

The same care that a reasonably careful child of the same age, intelligence, maturity, training, and experience would exercise under the same circumstances

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10
Q

Does foreseeable mental or physical illness constitute a defense to negligence?

A

No, illness must be unforeseeable to argue that a duty did not exist

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11
Q

How does a situation qualify as an emergency?

A

If it is unforeseen and sudden

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12
Q

What standard of care applies to professionals?

A

The professional must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care

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13
Q

Do teachers or clergy fall under the professional standard?

A

No

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14
Q

Are lawyers liable for damages due to lack of knowledge or skill usually possessed by other attorneys?

A

Yes, but they are not liable for mere error of judgment or mistake in unsettled law

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15
Q

Is the standard for doctors local or national?

A

National

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16
Q

What are the elements of informed consent?

A

(1) Defendant physician failed to inform patient adequately of material risk before securing consent for treatment,
(2) if plaintiff was informed of the risks he would not have consented,
(3) adverse consequences not made known to plaintiff occurred as a result of the treatment

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17
Q

Are all negligent acts taken by professionals malpractice?

A

No, some are ordinary negligence

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18
Q

What is negligence per se?

A

When someone violates a criminal statute, which exposes them to civil liability (duty and breach)

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19
Q

What are two factors to consider when analyzing negligence per se?

A

(1) Is the affected person in the class of persons that the statute is supposed to protect? (2) Is the harm of the type that the statute is supposed to prevent?

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20
Q

What are 5 negligence per se excuses?

A

(1) The violation is reasonable because of the actor’s incapacity,
(2) He neither knows nor should know of the occasion for compliance,
(3) The person is unable after reasonable diligence or care to comply,
(4) He is confronted by an emergency not due to his own misconduct,
(5) The compliance would involve a greater risk of harm to the actor or to others

21
Q

What are the elements of Res Ipsa Loquitur?

A

(1) The event is of a kind which ordinarily does not occur without negligence,
(2) Other responsible causes, including the conduct of the plaintiff and third persons are sufficiently eliminated by evidence, or, the thing or instrumentality was at the time and prior thereto under the exclusive control and management of the defendant,
(3) Indicated negligence is within the scope of the defendant’s duty to the plaintiff

22
Q

When does Res Ipsa Loquitur apply?

A

When an event occurs that could only come about due to negligence on the part of someone, but there is not clear evidence to suggest who specifically was negligent (very rare in the modern age with cameras everywhere)

23
Q

What is constructive notice?

A

If the defendant was taking reasonable care, they would have had actual notice of a hazard (banana peel cases)

24
Q

What are the two requirements of a causation analysis?

A

Cause-in-fact and Proximate Cause

25
Q

What is the “But-For” cause test?

A

But for the defendant’s negligence, the injury would not have occurred

26
Q

Can cause-in-fact be proved even if it is not known exactly how the harm occurred?

A

Yes, if there is sufficiently compelling proof that the defendant must have caused the harm somehow

27
Q

What are concurrent causes?

A

(1) Multiple acts or forces combined to cause an injury, (2) none of the forces, standing alone, would have been able to cause the injury

28
Q

What is the “substantial factor test” in cause-in-fact?

A

(1) Where multiple forces converge at the time of the plaintiff’s harm,
(2) where each of the multiple forces would have been sufficient to cause the harm

29
Q

Why do we have proximate cause?

A

Liability needs to be limited at some point

30
Q

What is the test for proximate cause?

A

Whether the consequences of the act were foreseeable

31
Q

What is the eggshell skull plaintiff?

A

If the type of harm is foreseeable, the harm is not beyond the scope of risk just because a defendant could not foresee the extent of the harm to the plaintiff (take the plaintiff as you find them)

32
Q

What is the majority opinion in Palsgraf?

A

Majority view (Cardozo) is that a defendant owes a duty of care to a plaintiff if the plaintiff is within the zone of reasonably foreseeable harm resulting from the defendant’s actions

33
Q

What is the dissenting opinion in Palsgraf?

A

There is a natural and continuous sequence between the dropping of the package and the injury, with no intervening events, therefore, the defendant should be liable

34
Q

What is an intervening and superseding cause?

A

An unforeseeable cause that impacts the consequence of the action

35
Q

What are the elements of the rescue doctrine?

A

(1) The defendant was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued
(2) The peril or appearance of peril was imminent
(3) A reasonably prudent person would have concluded such peril or appearance of peril existed
(4) The rescuer acted with reasonable care in effectuating the rescue

36
Q

Do businesses have a duty of care to protect customers?

A

Generally yes

37
Q

What is negligent infliction of emotional distress?

A

Where a physical injury results from negligently induced emotional distress, the plaintiff may recover damages even if no physical impact occurred at the time of the negligence

38
Q

What are the three duties of care for premises liability?

A

Invitee, Trespasser, Licensee

39
Q

What is attractive nuisance doctrine?

A

An artificial condition that is highly dangerous to children, where children are likely to trespass, and the possessor fails to exercise reasonable care in protecting the children from the condition

40
Q

What is the standard of review for excessive damages?

A

Damages are excessive if they fall outside the range of fair and reasonable compensation, result from passion, or are so large that they shock the conscious of the court

41
Q

What is contributory negligence?

A

Minority view that if a plaintiff contributed to the incident, the defendant is not liable at all

42
Q

What is comparative negligence?

A

Damages are reduced in proportion to the percentage of negligence attributed to him.

43
Q

What is the 50% and 49% rule distinction with comparative negligence?

A

With the 50% rule, a plaintiff can recover in a 50/50 scenario. With the 49% rule, a plaintiff with 50/50 liability cannot recover

44
Q

What is express assumption of risk?

A

A defense to negligence that usually is an exculpatory clause that fully releases the defendant from liability

45
Q

What are the implied assumption of risk elements?

A

(1) Actual knowledge of the risk
(2) Appreciation of the risk’s magnitude
(3) Voluntary encountering of the risk

or “open and obvious danger”

46
Q

Are employers generally immune to tort suits from employees?

A

Yes, because worker’s compensation exists for this reason

47
Q

What is sovereign immunity?

A

When governments are immune from tort claims, very common

48
Q

Are police required to go above and beyond the call of duty?

A

No

Torts (3 decks)

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