negligence

Question 1

negligence elements

Answer 1

• duty
• breach
• causation
• damages

Question 2

Duty standard of care

Answer 2

a person acts negligently if the person does not exercise rsbl care under all the circumstances

Question 3

General Duty

Answer 3

legal duty to act as an odrinary, prudent, rsbl person

Question 4

Risk v. utility

Answer 4

conduct is not negligent unless the magnitude involved so outweighs its utility as to make the risk unreasonable

Question 5

when the actor recognizes that his conduct involves a risk, he is required to know

Answer 5

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

Question 6

Primary Factors for rsbl care

Answer 6

• 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

Question 7

B < P x L

Answer 7

B - burden of adequate precautions
P - probability of harm
L - loss severity

Question 8

RPP Standard

Answer 8

how would a reasonable, prudent person would conduct themselves under these facts

Question 9

duty imposed by law

Answer 9

an obligation imposed by law requiring one party to conform to a particular standard of conduct toward another

Question 10

Duty (judge or jury)

Answer 10

judge issue
- the judge decides if there is a duty

Question 11

standard of care of person w superior ability

Answer 11

the skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a rsbly careful person

Question 12

who is the “reasonable person”

Answer 12

1. normal intelligence
2. normal perception, memory, and at least a minimum standard of knowledge
3. additional intelligence, skill, or knowledge actually possessed by the individual actor, and
4. physical attributes of the actor

Question 13

standard of care of a professional

Answer 13

conduct that the ordinary member of the profession would engage in under same or similar circumstances

Question 14

negligence per se elements

Answer 14

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

Question 15

negligence per se: role of judge/jury

Answer 15

• 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

Question 16

Perry factors

Answer 16

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

Question 17

Negligence per se majority

Answer 17

most strict
- When the judge determines that a statute applies to the facts, an unexcused violation is “negligence per se.”

Question 18

Negligence per se intermediate approach

Answer 18

Violation of a statute gives rise
to a “presumption” of negligence, which becomes negligence as a matter of law unless the presumption is rebutted

Question 19

negligence per se minority

Answer 19

least strict
- Violation of a statute is only evidence of negligence, which the jury may accept or reject as it sees fit

Question 20

direct evidence

Answer 20

• testimony by witness abt a matter w/in his personal knowledge
• proof of fact
• does not require drawing an inference from evidence

Question 21

circumstantial evidence

Answer 21

• proof of one or more facts from which one can find another fact
• requires drawing an inference from evidence

Question 22

res ipsa loquitur

Answer 22

• 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

Question 23

res ipsa restatement

Answer 23

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

Question 24

Res Ipsa elements

Answer 24

1. Plaintiff must establish the availability of the permissive inference of negligence
2. Plaintiff must establish that the negligence was attributable to the Defendant
3. Plaintiff must establish that Plaintiff was not responsible for the injury

Question 25

types of causation

Answer 25

• causation-in-fact (actual causation, “but-for” causation)
• legal causation

Question 26

causation in fact

Answer 26

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

Question 27

loss of chance doctrine

Answer 27

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

Question 28

multiple passive causes

Answer 28

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

Question 29

multiple active causes

Answer 29

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

Question 30

Alternative Liability

Answer 30

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

Question 31

indivisible injuries

Answer 31

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

Question 32

proximate (legal) causation

Answer 32

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

Question 33

proximate cause directness in time and space test

Answer 33

• older view
• the injury must occur directly in time and space to the breaching conduct

Question 34

proximate cause foreseeability test

Answer 34

• majority approach
• the injury must be foreseeably caused by the D’s breach

Question 35

proximate cause scope of risk test

Answer 35

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

Question 36

eggshell P rule

Answer 36

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

Question 37

intervening cause

Answer 37

new cause that comes into play after the D’s negligent conduct

Question 38

superseding cause

Answer 38

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