negligence Flashcards
negligence elements
- duty
- breach
- causation
- damages
Duty standard of care
a person acts negligently if the person does not exercise rsbl care under all the circumstances
General Duty
legal duty to act as an odrinary, prudent, rsbl person
Risk v. utility
conduct is not negligent unless the magnitude involved so outweighs its utility as to make the risk unreasonable
when the actor recognizes that his conduct involves a risk, he is required to know
a) the quality and habits of human beings and the qualityies characteristics and capacities that are common knowledge at the time and in the community
b) the common law, legislative enactments, and general customs
Primary Factors for rsbl care
- foreseeable likelihood that the persons conduct will result in harm
- foreseeable severity of any harm that may ensue
- the burden of precautions to eliminate or reduce the risk of harm
B < P x L
B - burden of adequate precautions
P - probability of harm
L - loss severity
RPP Standard
how would a reasonable, prudent person would conduct themselves under these facts
duty imposed by law
an obligation imposed by law requiring one party to conform to a particular standard of conduct toward another
Duty (judge or jury)
judge issue
- the judge decides if there is a duty
standard of care of person w superior ability
the skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a rsbly careful person
who is the “reasonable person”
- normal intelligence
- normal perception, memory, and at least a minimum standard of knowledge
- additional intelligence, skill, or knowledge actually possessed by the individual actor, and
- physical attributes of the actor
standard of care of a professional
conduct that the ordinary member of the profession would engage in under same or similar circumstances
negligence per se elements
an actor is negligent if
1. w/o excuse
2. the actor violates a statute
3. that is designed to protect against the type of accident the actors conduct causes
4. if the victim is w/in the class of persons the statute is designed to protect
negligence per se: role of judge/jury
- judge: decides whether a statute is applicable
- jury: decides whether the actor did, in fact, violate the statute and whether the negligence had a causal relation to the harm suffered
Perry factors
1) Is statute too obscure to put the public on notice?;
2) Does the statute impose liability without fault?;
3) Does applying the statute impose ruinous monetary liability disproportionate to the seriousness of defendant’s conduct?;
4) Did the injury result directly or indirectly from the violation of the statute
Negligence per se majority
most strict
- When the judge determines that a statute applies to the facts, an unexcused violation is “negligence per se.”
Negligence per se intermediate approach
Violation of a statute gives rise
to a “presumption” of negligence, which becomes negligence as a matter of law unless the presumption is rebutted
negligence per se minority
least strict
- Violation of a statute is only evidence of negligence, which the jury may accept or reject as it sees fit
direct evidence
- testimony by witness abt a matter w/in his personal knowledge
- proof of fact
- does not require drawing an inference from evidence
circumstantial evidence
- proof of one or more facts from which one can find another fact
- requires drawing an inference from evidence
res ipsa loquitur
- permissive inference that D must have been negligent
- court cannot find out what actually happened in the individual case
- typical: gravity cases, packaged food cases
res ipsa restatement
it may be inferred that harm suffered by the P is caused by the negligence of the D when
- the event is of a kind which ordinarily does not occur in the absence of negligence
- other responsible causes are eliminated by the evidence and
- the indicated negligence is w/in the scope of the D’s duty to the P
Res Ipsa elements
- Plaintiff must establish the availability of the permissive inference of negligence
- Plaintiff must establish that the negligence was attributable to the Defendant
- Plaintiff must establish that Plaintiff was not responsible for the injury
types of causation
- causation-in-fact (actual causation, “but-for” causation)
- legal causation
causation in fact
Causation requires that any proven negligence be a “substantial factor” in causing the harm, but it need not be the SOLE cause of the harm
loss of chance doctrine
In cases where the chance of the plaintiff’s recovery is already below 50%, it is possible to prove causation where any negligence merely reduced the chance of recovery by some percentage
* i.e. there was a “loss of chance” that P would recover
multiple passive causes
the actor’s passive negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent
multiple active causes
If two forces are actively operating, one because of the actor’s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor’s negligence may be found to be a substantial factor in bringing it about
Alternative Liability
when P sues all multiple actors, proves that each engaged in tortious conduct that exposed P to risk of harm but p cannot rsbly prove which actor caused the harm, the BOP of causation is shifted to D
indivisible injuries
multplie tortfeasors may be held liable even where P doesn’t know which portion of the damage was caused by which D.
burden shifts to D’s
proximate (legal) causation
cuts off liability for harm even though the harm was in fact caused by the D’s conduct or abnormally dangerous activity bc it would be unfair/unjust/unwise
proximate cause directness in time and space test
- older view
- the injury must occur directly in time and space to the breaching conduct
proximate cause foreseeability test
- majority approach
- the injury must be foreseeably caused by the D’s breach
proximate cause scope of risk test
the injury that occurs must be w/in the scope of the foreseeable risk that was the reason for holding the actor liable in the first place
eggshell P rule
a tort D takes his P as he finds her and is responsible for the full extent of the inquiries caused by the D’s negligence, even if the injuries are unforeseeable
intervening cause
new cause that comes into play after the D’s negligent conduct
superseding cause
an intervening cause that breaks the chain of causation
- the d negligence creates the risk of harm but the immediate trigger is another persons conduct that causes the harm
- must be forseeable
