Negligence

Question 1

Element 1

Answer 1

Existence of a duty of care

Question 2

Duty of care owed by: Typical person

Answer 2

duty to act like reasonably prudent person

Question 3

Duty of care owed by: Below average intelligence

Answer 3

duty to act like reasonably prudent person

Question 4

Duty of care owed by: above average intelligence

Answer 4

how a Reasonably prudent person w same above average intelligence and skills would act in the same circumstances

Question 5

Duty of care owed by: Person w physical disability

Answer 5

A reasonably prudent person with the same physical disability

Question 6

Duty of care owed by: Person w mental disability

Answer 6

Reasonably prudent person

Question 7

Duty of care owed by: Child

Answer 7

reasonably prudent child of the same age and maturity level

Question 8

Duty of care owed by: Child performing adult activities

Answer 8

held to a reasonably prudent adult standard if doing a dangerous activity like driving or hunting

Question 9

Emergency doctrine

Answer 9

Exception to normal duty of care- applies when there is an emergency and ∆ needs to act instantaneously with no time to consider actions

Question 10

Element 2

Answer 10

There was a duty of care that ∆ breached

Question 11

Basic approach to proving breach

Answer 11

determine duty –> determine if that duty was breached

Question 12

Mathematical approach

Answer 12

B<PL. ∆ breached duty if burden of taking precautions less than magnitude of the loss from an accident x probability of the accident

Question 13

Negligence per se

Answer 13

∆ breached if they violated a statute that prohibited certain conduct, statute intended to protect against the harm for which recovery was sought, and the victim harmed was part of class of ppl statute was designed to protect

Question 14

Industry custom

Answer 14

departure from custom of community in a way that increases risk= evidence of negligence

Question 15

Personal custom

Answer 15

failure to follow self imposed precautionary procedures not necessarily failure to exercise reasonable care- but can be admitted into evidence to show conduct violated standard

Question 16

res ipsa loquitur

Answer 16

Used when the nature of an accident suggests there was negligence- but π has no evidence of what actually happened- only applies when accident can only be traced back to ∆

Question 17

Element 3

Answer 17

Actual causation

Question 18

Test to determine actual causation: But-for test

Answer 18

Test whether injury would not have occurred but for ∆ substandard conduct (but for (negligence) the (injury) would not have occurred)

Question 19

Test to determine actual causation: Substantial factor test

Answer 19

2 ∆s acted negligently and either one could cause πs injury- ∆ actual cause of damage if jury finds their act was a material element in producing the damage

Question 20

Test to determine actual causation: Alternative Liability

Answer 20

when 2+ ppl by their acts possibly sole cause of harm- if π gives evidence that one of two is blameworthy- burden of proof on ∆ to show the other is the sole cause

Question 21

Criteria for alternative liability

Answer 21

1. There must be more than one tortfeasor
2. All must be engaged in similar conduct
3. π injured as a result of one of their actions
4. All tortfeasors must be named to the action

Question 22

Element 4

Answer 22

Proximate causation

Question 23

Foreseeability

Answer 23

whether nature of the harm or accident was of the same general nature as the original risk- if so, element of proximate cause is met