Negligence Flashcards
6 Parts of Negligence Analysis
(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)
Introduction
- “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.”
“Cause in Fact”
- 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.”
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Existence of Duty
- 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.”
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Scope of the Duty/Risk
- 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.
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- Superseding is intervening, but cuts off liability. The more foreseeable, the less likely its superseding); and
Breach of Duty
- 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.
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Damage (Injury)
- 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 . . .”
Special Negligence Topics
(1) Controlling Third Parties
(2) Slip and Fall
(3) NIED
(4) Medical Malpractice
Controlling Third Parties
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.
Third-Party Criminal Activity
- 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.
Slip and Fall
- 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.
- Length of time the hazard existed is the key inquiry.
To prove failure to exercise reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is by itself insufficient.
Defense to Slip and Fall
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.”
Negligent infliction of Emotional Distress (NIED)
- 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
Medical Malpractice Analysis
(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
Coleman Factors
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
