Negligence Flashcards

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1
Q

6 Parts of Negligence Analysis

A

(INTRO) List the negligent parties and the negligent acts they committed

(1) Address “cause in fact”

(2) Address existence of duty

(3) Discuss scope of duty/risk

(4) Analyze breach of duty

(5) Assess damages (injuries)

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2
Q

Introduction

A
  • “X was negligent in driving his car 130 mph . . .”
  • “Y has a claim against X for . . .”
  • Negligence comes Art. 2315, which states, “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”
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3
Q

“Cause in Fact”

A
  • When addressing negligence issues, the first issue to address is “cause in fact.”
  • There are two ways to look for this, first, (1) a but-for analysis. A but-for analysis consists of essentially, “but for the actions of the defendant, the injury to plaintiff would not have occurred.”
    Insert facts and analyze
  • Second, is the substantial factor test, which asks the question, “was the action of the defendant a substantial factor or cause of the injury to the plaintiff.”
    Insert facts and analyze
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4
Q

Existence of Duty

A
  • The second topic to address when discussing negligence is the existence of a duty, which essentially asks, “Did the defendant owe a duty of care.”
  • Generally, the duty among persons is the objective reasonable person standard’ or “how would the objective reasonable person behave in a given situation – what are they supposed to do.”
    Insert facts and analyze
  • There are additional ways to assess duty as well:
    • (1) negligence per se: where a non-tort statute establishes a standard of care,
    • (2) custom: evidence of how people in a certain industry behave to establish a standard of care, and
    • (3) res ipsa loquitor: wherein “the thing speaks for itself.”
      Insert facts and analyze
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5
Q

Scope of the Duty/Risk

A
  • The third item to discuss regarding negligence is scope, namely the scope of the duty/risk. This asks whether this defendant should be liable to the plaintiff for the injury in this case.
  • Factors to address here are:
    (1) foreseeability – should the defendant have foreseen that this could happen to the plaintiff;
    (2) ease of association – how easy it is to associate the injury to this plaintiff with this negligent act of the defendant;
    (3) superseding or intervening causes – things that occurred between the negligent act and the injury;
    • Superseding is intervening, but cuts off liability. The more foreseeable, the less likely its superseding); and
      (4) policy considerations – the Pitre policy factors (six of these) consist of:
      (i) the need for compensation of losses;
      (ii) the historical development of precedents;
      (iii) the moral aspects of the defendant’s conduct;
      (iv) the efficient administration of the law;
      (v) the deterrence of future harmful conduct; and
      (vi) the capacity to bear or distribute losses.
      Insert facts and analyze after each
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6
Q

Breach of Duty

A
  • The fourth element in a proper negligence analysis is breach of duty. This asks, “does the defendant’s conduct fall below the objective reasonable person standard.”
  • Another way to address breach is under the Learned Hand risk/utility formula. Under this assessment: the cost of precautionary activity should balanced against the expected loss to determine if the defendant has breached the duty.
  • A short way of phrasing this mathematically is: if B < P x L = Negligence. Here, B = burden of precautionary activity; P = possibility of resulting injury; L = magnitude of injury.
    Insert facts and analyze
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7
Q

Damage (Injury)

A
  • Finally, the last thing to asses is whether there is compensable injury. The plaintiff must prove by showing damage to person, property, or both.
    Insert facts and analyze
  • “The injury in this case is . . .”
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8
Q

Special Negligence Topics

A

(1) Controlling Third Parties
(2) Slip and Fall
(3) NIED
(4) Medical Malpractice

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9
Q

Controlling Third Parties

A

The main areas of “negligent supervision” or “negligent failure to control third parties” are:
(1) Caretakers: a jailor or custodian or chaperone’s duty may extend to the risk that the person under their care will injure a 3P
(2) Parents: parents may have a duty to control their children. Also, parents may be liable for the torts of their children under Art. 2318.
(3) Liability and 3P Criminal Activity (most important):
- Generally, the owner or operator of a business must exercise reasonable care for the safety of persons frequenting their business.
- This duty extends to keeping the premises safe from unreasonable risks of harm and waring persons of known dangers.

  • For all 3 of these: the duty is to behave as a reasonable ordinary prudent person.
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10
Q

Third-Party Criminal Activity

A
  • Criminal behavior of third parties is within the scope of the duty, and not superseding, when the criminal behavior is reasonably foreseeable.
  • The duty of a shopkeeper or other defendant is to behave reasonably.
  • Key Fact: Look for previous (similar) criminal activity at or near the defendant’s location.
  • Allocation: the intervening criminal and negligent shopkeeper must be allocated a percentage share of fault.
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11
Q

Slip and Fall

A
  • Mention this comes from statute and very similar to negligence analysis. The statute applies to all merchants
  • Prima Facie Case:
    (1) The condition presented an unreasonable risk of harm
    (2) The harm was reasonably foreseeable
    (3) The merchant either created or had actual or constructive notice of the condition which cause the harm, prior to the occurrence; and
    • Length of time the hazard existed is the key inquiry.
      (4) The merchant failed to exercise reasonable care.

To prove failure to exercise reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is by itself insufficient.

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12
Q

Defense to Slip and Fall

A

Open and Obvious:
“ The best defense available to the D is that the condition was “open and obvious” and thus D owed no duty or did not breach its duty to the P. D should argue that the condition was so open and obvious that it did not represent an unreasonable risk of harm, indicating no lack of reasonable care (i.e., no breach). Louisiana courts often relieve defendants of liability by ruling that the condition was open and obvious, resulting in case dismissals on summary judgment. If this defense fails, D should argue comparative fault to reduce any recovery by the percentage of fault attributable to P.”

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13
Q

Negligent infliction of Emotional Distress (NIED)

A
  • Where emotional distress is the only injury, not for parasitic injury to physical injury.
  • Prima Facie Case:
    (1) The P must either view the injury-causing event or come upon the scene soon thereafter (and before substantial change has occurred in the victim’s condition)
    (2) The direct victim’s harm must severe enough that it can reasonably be expected that a person in the P’s position would suffer serious mental anguish from the experience
    (3) The emotional distress sustained must be both serious and reasonably foreseeable to allow recovery (debilitating)
    (4) The plaintiff must be of certain relation to victim:
    (i) Spouses and children
    (ii) Grandchildren and grandparents
    (iii) Parents (not in-laws)
    (iv) Siblings
    (5) Causation
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14
Q

Medical Malpractice Analysis

A

(1) Determine if medical malpractice exists using Coleman Factors
(2) Determine if Dr. Defendant is a qualified health care provider
(3) Elements of Medical Malpractice

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15
Q

Coleman Factors

A

Only acts of malpractice are covered by the statute. To determine whether an act is malpractice, the courts apply the Coleman Factors. They are:
(1) Was the particular wrong “treatment related” or caused by a dereliction of professional skill;
(2) Does the wrong require expert medical evidence to determine breach;
(3) Did the wrong involve an assessment of the patient’s condition;
(4) Was there a patient-physician relationship or was it within the scope of hospital activities;
(5) Would the injury have occured had the patient not sought medical treatment;
(6) Was the alleged tort intentional

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16
Q

Qualified Health Care Provider

A
  • The determination as to whether the defendant is QHCP is important to determine the procedure and applicable standard of care.
  • To become a QHCP, the defendant must:
    (i) have obtained $100k worth of private insurance;
    (ii) be a licensed healthcare professional in Louisiana; and
    (iii) pay all required statutory fees.
17
Q

Benefits of Being a QHCP

A

There are many benefits to being a QHCP:
(1) damages are capped at $500k (excluding future medical expenses);
(2) the Louisiana Patient Compensation Fund pays any damages greater than $100k, meaning the defendant is liable up to only $100k.
(3) his alleged malpractice must be reviewed by a medical review panel consisting of 3 medical professionals and non-voting attorney before proceeding to court.
- The review panel opinions are designed to induce settlement, but will serve as expert reports in any subsequent litigation, but are not binding.
(4) Filing a request for a review suspends the time to file suit until 90 days after notification by certified mail. After the panel’s decision, the plaintiff has 90 days plus any remaining time in the one-year prescriptive period to file a claim in district court.

18
Q

If Defendant is not a QHCP

A

If defendant is not a QHCP, plaintiff can bypass the medical review panel and immediately file a claim in the proper district court.

19
Q

Elements of Medical Malpractice

A

Whether a QHCP or not, the elements of medical malpractice are similar to a standard negligence duty-risk analysis; the plaintiff must establish:
(1) duty;
(2) breach;
(3) causation, and
(4) injury.

20
Q

Duty of Healthcare Professional

A

The duty of a healthcare professional is a customary standard where the professional must exhibit that level of care exhibited by a duly licensed professional in the same (QHCP) or similar (non-QHCP) community.
- The analysis evaluates whether defendant exercised the same level of care exhibited by other professional; expert testimony is almost always required to establish the typical standard of care.
Insert facts and analyze

21
Q

Breach of Duty

A

Breach occurs when defendant either:
(i) lacked the required degree of knowledge or skill; or
(ii) failed to exercise the customary standard with reasonable and diligent care.
Insert facts and analyze

22
Q

Causation

A
  • Causation for medical malpractice claims are evaluated by the “but for” causation standard.
    Insert facts and analyze
  • Further, defendant’s conduct must be the proximate cause of plaintiff’s injury; as a proximate result of defendant’s lack of knowledge or skill, or his failure to exercise this degree of care, plaintiff suffered injuries that would not otherwise have been incurred. This is apparent because . . .
    Insert facts and analyze
23
Q

Informed Consent - If Applicable

A
  • In the case where a patient consented to the treatment and the risks were not disclosed in the consent form, causation asks whether a reasonable person in the plaintiff’s position would have consented to treatment, had the material risks been disclosed.
  • Here, plaintiff’s consent was obtained without disclosure of the material risks, therefore this standard applies.
24
Q

Injury

A

“The injury element is satisfied here because . . . “

25
Q

Timeliness of MedMal Claim

A

“Here, plaintiff’s case is/is not timely.”
- Medical malpractice claims have a prescriptive period of 1 year from the date of the incident, or 1 year from discovery
- There is a 3 year peremptory cap from the date of the incident.

26
Q

Other Malpractice

A

Attorneys:
- An attorney is under a duty to exercise the level of care exercised by a licensed attorney in the same/similar community.
- Once a plaintiff establishes a prima facie case that the attorney’s negligence caused a loss, the burden shifts to the defendant attorney to prove that the client would not have succeeded

Other Professionals:
- Judged under a customary standard

27
Q

Providers of Alcohol

A
  • LA Statute limits liability for those selling, serving or furnishing alcohol.
  • Proximate Cause: Drinking not serving or selling, is the proximate cause of injuries.
  • Sellers: Permitted seller not responsible for off-site injuries unless the drinker is under 21.
  • Social Hosts: Social Hosts not responsible for off-site injuries unless the drinker is under 21.
  • Drinker of alcohol is almost always negligent. The immunity only applies to server
  • Always consider punitive damage award. – drunk driver
  • If over legal limit (.08 BAC) and over 25% at fault, you cannot recover for your own injuries.