Negligence Flashcards
Res Ipsa Loquitur
“The thing speaks for itself”
Elements of Negligence Simple
- Duty
- Breach
- Cause-in Fact
- Harm/Damages (proximate cause)
Elements of Negligence expanded
D. had a duty to exercise some degree of care
(duty claim )
2) D. breached that duty through unreasonably risky conduct
(Was your behavior negligent, unreasonable under the circumstances; failure to take precautions)
3) D.’s conduct, in fact caused harm
(causation of fact; what you did or failed to do caused the harm. With/without your action caused the harm)
4) D’s conduct was the proximate cause of the harm
(proximate cause; meant to distinguish how/if you are liable. This is a legal idea that deals with remoteness, extremely unlikely. You can meet the causation of fact, but also not meet the proximate cause thus its not negligence because all the elements were not satisfied. Caused a harm in a very unlikely way).
Customs in Negligence
Relevant to the Jury, but not conclusive on cases of negligence.
Respondent Superior
The master/business is responsible for the actions of the servant/employee (impute torts of servant to the master). Must prove that the tort happens in the course and scope of the employment
Sovereign Immunity Exceptions
*Public services +Facilities
Premises Liability: Invitees
*Displacing Private Enterprise
*Special Relationship: When the government has put you in danger
Negligence Per se
- Does the statute apply to this situation
- Statute to prevent this type of harm
- Statute to protect this type of person
A statute shows that they are negligent when the plaintiff is the target of the statute’s protection.
Elements of Res Ipsa Loquitur
These rules said that the res ipsa loquitur doctrine could not apply unless:
(a) the defendant was in exclusive control of the harm-causing instrumentality at some relevant time and
(b) the plaintiff shows that she was not responsible for, or not an active participant in her own injury. Less importantly, some courts have also said that
(c) once specific acts of negligence are pleaded or proved, res ipsa loquitur is no longer available, and that
(d) res ipsa loquitur is not available unless the defendant has superior access to the evidence.
Course + Scope of Employment balance test for Respondent Superior
1) Of the kind employed to perform
2) Occurs substantially within authorized time and space limits
3) Actuated, at least in part, by a purpose to serve the master
4) Use of force is not expected
5) Not within scope if:
a. To little actuated by a
purpose to serve the master
b. Different in kind from that
authorized
c. Far beyond time and space
Scope of Employment examples
Ex. Miller v. Reiman-Wurth (car accident from check drop off): Not scope of employment,
Ex. Bussard v. Mini-Med, Inc.: “The Bug Bomb Case”: Scope of employment, foreseeable that an employee exposed during work and heading home could suffer injury.
Coming and Going Rule +Exception
No respondent superior for coming and going to work
Exception: If it is foreseeable that an incident would arise from a harm/instrumentality caused by the employer. That turns personal time into an extension of a work place.
Eggshell Plaintiff rule:
The causation principle that makes the negligent defendant liable for an unforeseeable result because of a preexisting condition of the plaintiff
But-for-cause test
P. would not have been harmed, If not BUT FOR the defendant/action/X
Elements of Proximate Cause
- Zone of danger
Who is in the immediate area
who is likely to be affected by
the zone of care. Not a super
good reasoning. (not that
helpful legal principle, hard to
apply) - is it foreseeable
- Substantial
- Uninterrupted chain of events /no intervening cause
If intervening cause they are
typically held liable - Likely to produce the result
- Remote in time and space
Joint liability
Defendants share damages equally
