Negligence

Question 1

Negligence

Answer 1

The unintentional tort
a) harm arises by accident
b) Negligence= absence of care
c) no intent element

Question 2

Elements of negligence

Answer 2

a) duty of care- defendant had a legal responsibility to the plaintiff
b)breach of duty- defendant breached the duty of care or fail to meet legal obligations
c) factual cause- defendants conduct actually caused the injury
d) proximate cause- foreseeable that defendants conduct might cause this type of harm.
e)damages

Question 3

Duty of care=duty to behave as a reasonable person would under the circumstances

Answer 3

a) the standard of conduct recognized by law requiring persons to behave as a reasonably prudent person under the same or similar circumstances to avoid or minimize risk
b) question of law, not fact
c) test=foreseeability

Question 4

Vicarious liability

Answer 4

Liability for someone’s else’s tortious actions due to special relationship
Ex:
-employer/employee
-parent/child
-business partners

Question 5

Breach

Answer 5

Defendant failed to meet legal requirements of duty of care

Question 6

Negligence per se

Answer 6

If all requirements are met, liability is automatic
-plaintiff not required to prove breach

Question 7

Requirements for negligence per se

Answer 7

1. Statutory minimum standard of care for activity
2. Statue intended to protect certain group of people
3. Defendants violation of statue in injury to member of group

Question 8

Causation

Answer 8

Defendants breach of duty caused plaintiff harm

Question 9

Causation has two prongs: (factual cause)

Answer 9

-harm would not have happened without the defendants breach

“But for the breach of duty, plaintiff injury would not have occurred.”

Question 10

Causation element has two prongs: (Proximate cause)

Answer 10

-type of harm was a reasonably foreseeable result of the defendants conduct

a)“Harm within the risk”
b) not necessary to foresee the exact sequence of events that occurred
c) ***Superseding cause=unforeseeable intervening event that breaks chain of causation

Question 11

Res ipsa loquitur

Answer 11

“The thing speaks for itself”
-facts imply that harm was caused by defendants negligence

Question 12

Res ipsa loquitur requirements

Answer 12

1. Defendant has exclusive control of the thing that caused him harm
2. The harm would not have occurred without negligence
3. Plaintiff had no role in causing harm

Question 13

Three defenses to negligence

Answer 13

a) contributory fault
b) comparative fault
c) assumption of risk

Question 14

Contributory fault

Answer 14

If plaintiff is negligent at all, recovers nothing

• plaintiff cannot be slightly negligent

Question 15

Comparative fault

Answer 15

Recovery proportionate to responsibility
90%/10%

Question 16

Modified comparative fault

Answer 16

Proportionate recovery of plaintiff 50% responsible or less
49%_51%. Or. 51%_49%

Question 17

Assumption of the risk
a) plaintiff barred from recovery is they voluntarily accept risk of injury-

Answer 17

1. Replaced by contributory/comparative fault rules in most jurisdictions
2. Can be expressed or implied
3. Does not apply to harm outside the of scope of inherit danger

Question 18

Requirements for assumption of the risk

Answer 18

1. Plaintiff knew the specific danger
2. Plaintiff voluntarily exposed to self danger
3. Plaintiffs harm was caused by the exposure

Question 19

Strict liability

Answer 19

-liability without fault
a) inherent unavoidable danger—high burden on defendant

Question 20

Two contexts where businesses may be subject to strict liability:

Answer 20

1. Ultrahazardous activity
   a) danger to public=especially high
2. Defective products
   a) manufacturer and/or seller may be held to strict liability

Question 21

Ultrahazardous activity

Answer 21

Activity involving high risk of serious harm that cannot be completely avoided through reasonable care
-defendant engaging is always liable for resulting harm
Ex: storing harmful chemicals
Storing explosives
Keeping wild animals