Negligence Flashcards
(48 cards)
What are the elements of negligence?
(1) Duty, (2) breach, (3) causation, (4) damages
What is the standard duty of care?
The reasonably prudent person
What is the learned hand formula from Carroll Towing for breach?
B (burden) < P (probability of accident) x L (seriousness of injury)
Which duties also fulfill the breach requirement?
Informed consent, Negligence Per Se, and Res Ipsa Loquitur
What are the four cause-in-fact possibilities?
But-For Causation, Concurrent Causes, Substantial Factor, Alternative Causes
How does a proximate cause analysis go?
Palsgraf - majority view, minority view, address any possible superseding causes (criminal acts, natural factors, etc)
Is a defendant’s failure to follow a custom evidence of negligence?
Yes, but it does not definitely prove negligence
What standard of care is a disabled person held to?
The same standard of care that a reasonably prudent person with that disability would have
What standard of care is a child held to?
The same care that a reasonably careful child of the same age, intelligence, maturity, training, and experience would exercise under the same circumstances
Does foreseeable mental or physical illness constitute a defense to negligence?
No, illness must be unforeseeable to argue that a duty did not exist
How does a situation qualify as an emergency?
If it is unforeseen and sudden
What standard of care applies to professionals?
The professional must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care
Do teachers or clergy fall under the professional standard?
No
Are lawyers liable for damages due to lack of knowledge or skill usually possessed by other attorneys?
Yes, but they are not liable for mere error of judgment or mistake in unsettled law
Is the standard for doctors local or national?
National
What are the elements of informed consent?
(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
Are all negligent acts taken by professionals malpractice?
No, some are ordinary negligence
What is negligence per se?
When someone violates a criminal statute, which exposes them to civil liability (duty and breach)
What are two factors to consider when analyzing negligence per se?
(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?
What are 5 negligence per se excuses?
(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
What are the elements of Res Ipsa Loquitur?
(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
When does Res Ipsa Loquitur apply?
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)
What is constructive notice?
If the defendant was taking reasonable care, they would have had actual notice of a hazard (banana peel cases)
What are the two requirements of a causation analysis?
Cause-in-fact and Proximate Cause
