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Torts & Leg Reg > Negligence > Flashcards

Negligence Flashcards

1
Q

Elements of Negligence

A

1) Duty
2) Breach
3) Actual Cause
4) Proximate cause
5) Damages

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2
Q

Duty

A

you have a duty to act like a reasonable person under the circumstances to avoid/minimize harm to others
1) if you act, act reasonably to avoid or minimize harm to others
2) no general duty to act

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3
Q

Hand Formula

A
  • used for calculating breach
  • formula is predictive and occurs before the actions takes place
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4
Q

B

A

burden of avoiding the harm; cost of taking the precaution

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5
Q

P

A

Probability that harm will be caused without the precaution

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6
Q

L

A

the foreseeable severity of the harm likely to be caused / could be caused without precaution

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7
Q

B < PL

A

a reasonable person would have taken the precautions
- failure to take the precaution is breach

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8
Q

B > PL

A

the burden of taking the precaution outweighs the risk
- failure to take precautions is not breach

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9
Q

Risk-Utility Balancing

A

Where an act is one which a reasonable person would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done

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10
Q

negligence

A

A person acts negligently if the person does not exercise reasonable care under the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood (P) that the person’s conduct will result in harm, the foreseeable severity (L) of any harm that may ensure and the burden of precaution (B) to eliminate or reduce the risk of harm

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11
Q

Unstructured Risk-Utility Balancing

A

the likelihood that D’s conduct will cause harm and the amount of harm it will cause (if harm results). Those are weighted against the usefulness of the conduct and the cost of making it safer.

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12
Q

Qualities of a reasonable person…

A

D will be judged against the standard of a reasonable person
- we also take into account traits and characteristics of D and the circumstances

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13
Q

knowledge/expertise

A
  • lower than average knowledge is taken into account, D should have known
  • higher than average knowledge is taken into account
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14
Q

Expertise

A

If D holds themselves out to have expertise, even if she doesn’t actually have the expertise, and the other person relies on that representation, D is held to the general knowledge and skill of an expert in that field

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15
Q

emergency

A
  • emergency situation is taken into account
  • must not have been foreseeable
  • must not have been caused by D and requires D to act instantaneously to avoid injury or collision
  • if a reasonable person would believe it to be can emergency
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16
Q

Majority emergency

A

jurors should receive an instruction that they are to take into account that the actor was faced with an emergency

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17
Q

Minority emergency

A

Jury should be instructed that an actor must behave reasonably under the circumstances
lawyers should introduce evidence about the emergency and explain to the jurors that the emergency is part of the overall circumstances they can consider in deciding whether negligence exists

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18
Q

Poverty

A

Can be taken into account if D has taken reasonable precautions

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19
Q

Customary Practice

A

following or failing to follow custom is relevant but does not itself prove breach

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20
Q

Physical characteristics

A

D is measured against the standard of a reasonably prudent person with his physical characteristics
- physical conditions (blindness)
- better-than-average strength
- sudden-onset conditions (stroke/heart attack)

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21
Q

Mental Incapacity or Mental Illness

A

no allowance is made in negligence
- includes memory, judgment, emotional stability, intelligence, etc.
- old age is not taken into consideration unless it causes a physical problem

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22
Q

Religious Beliefs

A
  • does not make you automatically reasonable if you follow your religious beliefs
  • courts typically refuse to regard an actor’s choice as reasonable simply because his or hers religion complies a given course of action
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23
Q

Standard of Care for Children

A

A child’s conduct is breachy if it does not conform to that of a reasonably careful person of the same age, intelligence, or experience

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24
Q

Standard of Care for Children Exception

A

a) A child younger than 5 years of age is incapable of negligence
b) The special rule in a) does not apply when the child is engaging in a dangerous activity that characteristically undertaken by adults
ex: a child is taking their parents’ car, driving it, and hits someone

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25
Q

Standard of Care for Professionals

A
  • one who represents herself to be a physician, cardiac surgeon, lawyer, or electrical engineer is held to the standard of knowledge and skills normally possessed by members of that profession
  • a professional cannot successfully argue that he acted based on the knowledge and skill that he actually had
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26
Q

Professional Malpractice Cases

A

1) juries are incapable of determining the professional standard of care without expert testimony
2) the judge will not give the jury the normal “reasonable person” standard instruction; instead, did D act with the skill and knowledge normal to that profession

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27
Q

Customary Practice for Medical Malpractice cases

A

Customary practice conclusively establishes the standard of care; AND compliance with that standard means D did not commit negligence (breach)

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28
Q

Negligence Per Se

A

an actor is negligent if, without excuse, the actor violates a statute that is 1) designed to protect against the type of accident the actor’s conduct causes, AND 2) the accident victim is within the class of persons the statute is designed to protect (also has to be the right fit)

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29
Q

Different ways States Handle Negligence Per Se

A

1) VOS majority rule
2) VOS like custom
3) VOS presumption

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30
Q

NPS amorphous standards

A
  • The less detailed the statute provides about specific conduct, the less likely it is to be
    imported into negligence per se.
  • Statute outline certain specific acts that would constitute a violation of the standard of care.
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31
Q

Licensing statutes

A
  • do not create a standard of care
  • can add evidence of what it takes to get a license but just not having the license is not breach
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32
Q

Excuses to NPS

A

1) the violation is reasonable b/c of the actor’s incapacity
2) he neither knows nor should know the occasion of compliance
3) he is unable after a reasonable diligence to comply
4) he is confronted by an emergency not due to his own misconduct
5) compliance would involve a greater risk of harm to the actor or to others

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33
Q

Res Ipsa Loquitur

A
  • an exception to this general rule that “proof of an accident is not enough to show breach.”
  • where it applies, the accident itself is evidence of negligence (breach)
  • P does not have to specify what specific behavior was breachy
34
Q

RIL Test

A

If the D owes P a duty of care, the jury is permitted to infer that D was negligent in some unspecified way when, based on the evidence, there is a rational basis in common experience or expert testimony finding:
1. The injury was more likely than not the result of negligence; and
2. That the D was more likely than not at least one of the persons who was probably negligent
* More likely than not is the standard (51%)

35
Q

Element 1 (RIL)

A
  • the accident would not ordinarily happen without negligence
  • it is more likely than not that this accident resulted from negligence
36
Q

Element 2 (RIL)

A
  • P has to put forward evidence showing that D was more likely than not one of the negligent actors
  • Can’t be applied unless evidence makes it clear that the D is one of the persons whose negligence caused the accident
37
Q

Forms of Evidence

A

Direct & circumstantial

38
Q

direct

A

first hand evidence of the thing you want to prove

39
Q

circumstantial

A

evidence of one fact offered to establish another fact

40
Q

Actual Causation

A

But-for causation
D’s negligence must be a but-for cause of P’s harm
- if not for D’s breach, P’s harm would not have occurred

41
Q

Knowable

A

there is evidence that it is knowable but is not present therefore there is a failure of evidence, and the court will not allow the jury to infer causation

42
Q

Not Knowable

A

we don’t know the alternative situation, therefore we will allow an inference of causation
– “Where the negligence of the D greatly multiples the chances of an accident to the P, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of causation.”

43
Q

Zuchowicz Two Pronged Test

A

If 1) a negligent act was deemed wrongful (breach) because that act increased the chances that particular type of accident would occur, and
2) a mishap of that very sort did happen, then this is enough to support a finding by the trier of fact that the negligent behavior caused the harm

44
Q

Failure to Warn

A
  • When the risks of harm are generally obvious to a reasonable person, there is NO duty to warn of those risks.
  • When the risks are not generally obvious, but D proves that P knew of the danger, there is no causation.
  • Even if P did not know of the risk, breaching D escapes liability by proving that P would not have read and headed a warning, had one been given.
45
Q

Daubert Factors

A
  • scientific standard for expert testimony
    1) Whether the theory or technique can be and has been tested
    2) Whether it has been subjected to peer review and publication
    3) Its known potential error rate
    4) The existence and maintenance of standards controlling its operation
    5) Whether it has attracted widespread acceptance in the specific scientific field
46
Q

Loss of Chance

A
  • Most states allow loss of chance claims to reach the jury even when the P cannot prove that the D was more likely than not, the cause of P’s harm. (majority rule)
47
Q

Joint & Several Liability

A

Where separate acts of negligence combine to produce directly a single injury, each tort-feasor is responsible for the entire result, even though his act alone might not have caused it

48
Q

J/S 2 situations

A

1) D’s acted independently but caused indivisible harm
2) D’s acted in concert

49
Q

Multiple necessary causes

A

Each party (breach) is necessary to cause total harm. Each breach in isolation does not cause harm.

50
Q

Indivisible Harm

A

indivisible consequences of the parties’ independent breachy acts, multiple but-for causes may exist

51
Q

Concerted Action

A

When persons are liable because they acted in concert, all persons are jointly and severally liable for the share of comparative responsibility assigned to each person engaged in concerted activity.

52
Q

A person acts in concert when…

A

1) Pursue a common plan,
2) Actively take part in it,
3) Further it by cooperation or request,
4) Lend aid or encouragement, or
5) Ratify and adopt the tortious acts done for their benefit.

53
Q

Court requires two things in concerted action…

A

1) A must know of the underlying wrongful conduct of B (or should have known)
2) A’s assistance or encouragement must be a substantial factor

54
Q

J/s liability occurs in two situations:

A

1) D acted independently but caused indivisible harm
2) D acted in concert

55
Q

Effect of J/s

A

P may sue any one or more of the potential D’s in a single action but it is not required (joint)
D liable is responsible for the full injury suffered by P (several)
P is entitled to only one recovery

56
Q

Several Liability

A

refers to D being responsible only for her share of the injury

57
Q

Multiple Sufficient Causes

A

Where two causes, each attributable to the negligence of a responsible person, concur in producing an injury to another, either of which causes would produce it, regardless of the other, they are both causes of the injury. Each breach in isolation does cause harm.

58
Q

Alternative Liability

A

multiple breaching Ds in front of the court and the court shifts the burden to the Ds to prove that each one did not individually cause the harm

59
Q

Proximate Cause

A

limits Ps liability to the foreseeable harm; “scope of liability”

60
Q

proximate cause restatement

A

An actor’s liability is limited to those harms that result from the risks that made the actor’s
conduct tortious. [reasonable foreseeability]

61
Q

Does the exact manner of harm matter?

A
  • courts do not require that the details of how D’s negligence actually injures P to be foreseeable, it only matters that the accident is foreseeable
  • what makes the activity dangerous?
    ex: severe skin burns vs. work place explosion
62
Q

Thin Skulls in Negligence

A

where a particular type of injury to P is foreseeable, D is liable for the injury sustained even though it is more serious than he (or a reasonable person) might have anticipated
- courts treat as “foreseeable” any misfortunes that befall victims as a direct result of seeking medical care for the injuries suffered in the accident caused by the D’s negligence

63
Q

Direct cause

A

minority approach
- alternative to foreseeability
- sometimes “natural and probable consequences”
- very related to “but-for” causation

63
Q

NPS and Proximate Cause

A

If you satisfy element 2 of NPS (the harm was the kind the statute sought to prevent) you automatically have foreseeability

64
Q

Superseding Causes

A

P breaches –> INTERVENING ACT –> P harmed
Definition: An act - person or event - that is so bizarre, unexpected, unusual, etc.
(unforeseeable) that it breaks the proximate cause chain.

65
Q

Rescuer Doctrine

A
  • D is liable for rescuers injuries if it foreseeable that a rescuer would intervene
  • so long as the rescuer’s response is “normal” the negligent actor will not escape liability
66
Q

Acts of God

A
  • D’s negligence combines with storm, fire, tornado, etc. to create damages
    Majority: depends of whether the “act of god” was foreseeable
67
Q

Kinds of Compensatory Damages

A
  • lost earnings
  • lost earning capacity
  • medical expenses
  • pain & suffering
  • other (loss of enjoyment of life, etc).
68
Q

Lost earnings

A

between the accident and trial (includes promotions that were likely)

69
Q

Lost earning capacity

A

going forward, how long P would have worked, additional education

70
Q

Medical Expenses

A

Past are easy to prove; future are harder
- single recovery rule

71
Q

Pain and Suffering

A
  • subjective reaction to accident and consequences; includes anxiety, grief, and pain
  • eggshell skull comes in here to extend the damages
72
Q

Punitive Damages

A
  • usually have to prove liability by more than a preponderance of the evidence (clear & convincing)
  • usually involves willful, reckless, or malicious conduct. Requires worse mind than negligence
  • often capped in the jurisdiction
73
Q

Assumption of the risk 3 types

A

1) express assumptions of the risk
2) primary implied assumption of the risk
3) secondary implied assumption of the risk

74
Q

Express Assumptions of the Risk

A
  • typically written (waivers & contracts)
  • typically enforced by courts and is a complete defense (D had no duty)
  • consent must be freely given; not valid if extracted from someone with relatively little bargaining power
  • must clearly consent to accept the specific risk or waive the specific claims
75
Q

Primary Implied Assumption of the Risk

A
  • D has offered P an activity he is under no duty to offer, and P is under no duty to accept (complete defense) Certain unavoidable risks go along with it. By participating, P considers the tradeoff worthwhile and accepts the risk.
  • P implicitly accepts well-known incidental risks associated with or inherent in an activity or game
  • if implied assumption of the risk is found to apply, the court should rule that D had not duty
76
Q

Secondary Implied Assumption of the Risk

A

D is engaged in risky/breachy behavior. He owes P a duty. But P is (or should be) aware
of the risks associated with D’s risky behavior, and P engages in the conduct/activity
anyway.
- D can raise this defense by asserting that P acted unreasonably by engaging in a known risk
- This just becomes a case of comparative negligence: Evaluate the negligence case for
both parties, and then the jury is asked to compare responsibility.

77
Q

Contributory Negligence

A

minority rule
- any responsibility on P’s part completely bars recovery

78
Q

Pure Comparative Negligence

A

Minority rule
- an injured party may recover regardless of his degree of fault but his recovery is reduced by his percentage of fault. No limits or bars exist

79
Q

Modified Comparative Negligence

A

majority rule
- 50%-bar states: P cannot recover if he is 50% or more responsible.
- 51%-bar states: P cannot recover if he is more responsible than D.
- If parties equally responsible, P would recover in this case.

80
Q

What if there is more than one D?

A
  • Minority: P is barred from recovering against each D
  • Majority: P may recover against either D
  • Usually expressed: P’s fault must be less than combined fault of Ds.

Torts & Leg Reg (3 decks)

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