Negligence

Question 1

Duty Majority jurisdiction

Answer 1

(1) Members of society must act like a reasonable person under the circumstances to reduce or mitigate harm to others
(2) Ordinarily a question of law that judges may use as a gatekeeping tool

Question 2

Duty to Act

Answer 2

(1) If you choose to act, you must act reasonably
(a) Exception: If the only harm imposed by actor’s conduct is emotional harm, they likely will not be liable because most states don’t recognize negligent infliction of emotional distress

Question 3

No duty to act or rescue

Answer 3

(2) Typically there is no duty to act or rescue
(a) Exception: if an actor has a special relationship with the victim (Parent/child, employer/employee, teacher/student, landlord/tenant)
(b) Exception: if an actor has a special relationship with the perpetrator (parent /child, therapist/patient, prison guards/prisoners)
(c) Exception: if an actor causes injury to someone, negligently or not, they have a duty to provide assistance to them to prevent further harm
(d) Exception: if an actor attempts to rescue another, they assume a duty of care and cannot leave the victim in a worse position by abandoning rescue

Question 4

Duty Minority jurisdiction

Answer 4

(1) Actors only owe a duty to individuals within the “zone of danger” who are foreseeable to suffer harm given the risk created by defendant’s breach
(a) Risk imports relation → the greater the risk the greater the zone of danger

Question 5

Reasonable Person

Answer 5

(1) The reasonable person is not perfect, is generally careful, has generally good common sense, and takes steps to do research if they don’t know something
(2) Various characteristics of a person may be taken into consideration to determine what a reasonable person with that trait/knowledge would have done under the circumstances
(3) The circumstances may change how a reasonable person would be required to act

Question 6

Ignorance, lack of common sense, or below average knowledge

Answer 6

not a characteristic considered and therefore not an excuse to substandard care; the law expects you to know or do research to find out more

Question 7

Extra Skill or knowledge

Answer 7

(1) A characteristic that is taken into account and the law compares you to what a reasonable person with that knowledge or skill would have done under the circumstances
(a) Where a defendant holds himself out to have expertise, he is held to the general knowledge and skill of that field of expertise

Question 8

Physical characteristics

Answer 8

(1) A defendant with physical disabilities is measured against a reasonable disabled person with his physical disability
(a) This includes physical illnesses and any unforeseeable sudden onset of physical problems

Question 9

Mental incapacity and mental illness

Answer 9

(1) Not characteristics considered for the reasonable person and are therefore not an excuse to substandard care
(a) Mental capacity/illness: judgment, memory, emotional stability, intelligence
(b) Old age is not taken into account unless is causes physical problems
(c) No defense for sudden onset of mental incapacitation
(d) Restatement exception: mental illness should be considered when deciding contributory negligence

Question 10

Religious beliefs

Answer 10

(1) Not taken into consideration for the characteristics of a reasonable person and are therefore not an excuse for substandard care
(a) Arises in cases of medical treatment refusal that results in exacerbated injuries that could have been prevented → religious believer typically can’t recover for injuries that could have been prevented

Question 11

Age

Answer 11

(1) The age of a minor is a characteristic considered and minors are compared to other minors of the same age, mental capcity, and experience in determining whether he/she acted reasonably
(a) Exception: When a child is engaged in a hazardous adult activity, they will be held to an adult standard
(b) Restatement Exception: children under 5 are not liable
(c) Illinois Rule: If the child is older than 14 there is a rebuttable presumption that he/she is able to meet the adult standard in which age, intelligence, and experience is not taken into account. If the child is between 7-14 years old then they are compared to a child of the same age, mental capacity, and experience. Children under 7 are not liable

Question 12

Professionals

Answer 12

(1) A person who represents themselves to be within a class of professionals, doctor, lawyer, engineer, is held to the standard of knowledge and skill normally possessed by members of that profession
(a) Even if the defendant is not actually within that professional group but holds themselves out to be, he/she will be compared to a reasonable professional of that group
(b) If the defendant has additional knowledge or training within the professional scope then they will be compared to a reasonable person with that sub-specialty
(c) The standard still applies even if services are given away pro-bono

Question 13

Professional Malpractice cases – duty

Answer 13

(1) There must be a doctor-patient relationship or attorney-client relationship in order to establish a reasonable duty of care to the plaintiff
(a) If it appears that the doctor or attorney is giving medical or legal advice, they may have a reasonable duty of care to that person
(b) The defendant is compared to other people within the same profession with the same skill and knowledge

Question 14

Professional Malpractice cases – breach

Answer 14

(1) The jury is incapable of determining what is reasonable practice in the professional context and must rely on expert testimony
(a) Locality rule: what a professional in that locality is likely to to know is usually the standard applied
(b) Customary (medical) practice establishes the duty owed and non-compliance with that custom is dispositive in determining that there was breach
(c) Experts may testify that there are multiple ways a reasonable professional may have acted, but as long as the defendant’s conduct is on the list of ways a reasonable professional would have acted, then they are not liable

Question 15

Emergency situations

Answer 15

(1) Majority jurisdiction: emergency situations are considered in formulating the reasonable person since there is limited time to make good risk-utility decisions
(a) Emergency: a situation that requires the defendant to act instantaneously to avoid injury or collision (reasonable appearance of imminent danger is usually enough)
(b) Courts consider the level of danger and the time the person had to react to determine if it was an emergency
(c) Exception: the actor fails to reasonably anticipate a foreseeable emergency situation or his/her own conduct created the emergency situation
(2) Minority jurisdiction: The emergency situation may be introduced as evidence of the circumstances to be considered but is not considered in the reasonable person analysis

Question 16

Voluntary intoxication

Answer 16

Not a circumstance taken into consideration when formulating the reasonable person

Question 17

Poverty

Answer 17

It may be considered in certain circumstances
(1) If a person is impoverished and exhausts all reasonable avenues their proverty will likely be considered in formulating the reasonable person
(2) If a person is financially burdened and tries but doesn’t exhaust other avenues, their finacial insecutirty likely will not be considered in forumlating the reasonable person

Question 18

Customary practice – breach

Answer 18

A common practice that is widely available and adhered to among a sizeable portion of the population showing that the B/PL analysis has already been done
(1) The custom does not need to be universally practiced, just well defined and agreed upon so the defendant knows or should have known of the practice
(2) Custom is not dispositive but is highly influential
(3) Acting against custom is likely to show that the defendant didn’t act reasonably, unless it was not feasible or practical for the defendant to adopt the practice
(4) Following custom will not always relinquish the defendant from liability if there were other precautions the defendant should have taken
(5) Defendant’s best argument is that custom doesn’t apply to the case

Question 19

Breach

Answer 19

An actor breaches when he/she fails to act like a reasonable person under the circumstances, thereby creating an unreasonable risk of foreseeable harm

Question 20

B/PL Analysis

Answer 20

(1) If the burden of avoiding harm, by taking precautionary measures, is less than the probability of the harm occurring multiplied by all the possible types of harm that could occur without precautionary measures, then there is a breach if those precautionary measures are not taken
(2) If the burden of avoiding the harm is more than the probability of the harm occurring multiplied by the possible types of harm that could occur without precautionary measures, then there is no breach
(3) Ignorance of the possible risk is not an excuse: if a reasonable person would have done more research, the defendant will be liable
(4) Just because the burden of precautions may be too high to implement because of some other factors (location, import tax, profit) does not mean the defendant will escape liability if there are businesses or people that can implement the precautions without the burden being too high

Question 21

Risk-Utility Analysis

Answer 21

(1) If the risk of harm outweighs the utility of the conduct without precautionary measures, then there is a breach
(2) If the utility of the conduct outweighs the risk of harm, there is no breach

Question 22

Judicially Determined Standard of Care

Answer 22

(1) A judge may set the standard of care and determine that the defendant did or did not act reasonable as a matter of law and that reasonable minds could not differ on the risk utility trade-offs
(2) Certain burdens may be too high to require of defendants in general, and therefore as a matter of law, defendant acted reasonably despite not taking additional precautionary measures
(3) When the utility of a product outweighs the risk of harm

Question 23

Negligence Per Se – Majority Jurisdiction Rule and Exceptions

Answer 23

(1) Majority Jurisdiction: An actor is negligent if, without excuse, the actor violates a statute that is
(a) designed to protect against the type of accident the actor’s conduct causes, and
(b) if the accident victim is within the class of persons the statute is designed to protect
(2) Exception: Statutes that require someone to protect another
(3) Exception: The statute is not a good fit for policy reasons
(4) Exception: Amorphous Standards
(5) Exception: Licensing Statutes
(6) Exception: penalty for violation is disproportionate to a finding of negligence
(7) Even if the statute does not apply the plaintiff may still argue traditional negligence using B/PL

Question 24

Negligence Per Se – Minority Jurisdiction

Answer 24

(1) Minority Jurisdiction: Some states treat the statute as custom and a violation of the statute as evidence of reasonableness, not determinative of breach
(2) Minority Jurisdiction: violation of a statute creates a prima facie case of negligence per se that can be rebutted with proof that a reasonable person would have acted the same way the actor did

Question 25

Excuses for Negligence per se

Answer 25

Trying hard, forgetting, mental incapacity, or exercising ordinary care are not a valid excuses

(1) The actor is confronted with an emergency not due to his own misconduct
(2) Compliance would involve a greater risk of harm to the actor or to others
(3) The actor is unable after reasonable diligence or care to comply
(4) The violation is reasonable because of the actor’s physical incapacity
(5) The actor neither knows or should know of the occasion for compliance

Question 26

Amorphous Standards:

Answer 26

If the statute’s language is broad and does not set forth specific conduct a person must abide by, it cannot be used in negligence per se claims
(1) The statute must set a clear definitive rule of conduct to follow

Question 27

Compliance/Non-compliance with a statute

Answer 27

Like custom, although non-compliance with a statute might result in negligence per se, compliance with a statute does not necessarily mean that the defendant will escape liability because statutes are usually minimum standards, and there may be situations that require additional caution from the reasonable person

Question 28

Licensing Statutes

Answer 28

(1) Violation of a licensing statute does not constitute negligence per se because the statute does not specify particular conduct to abide by
(2) Not having a license may serve as evidence for traditional breach because if the defendant did not meet the level of skill and knowledge required to obtain the license but held themselves out as having such knowledge or skill and harm results due to reliance on this, then that’s breach

Question 29

Res Ipsa Loquitur

Answer 29

The judge may allow the jury to infer that the defendant breached in some unspecified way, based on the accident itself, when there is a rational basis in common experience or expert testimony for finding that
(1) The injury was more likely than not the result of negligence
(a) just because the accident rarely happens doesn’t mean that it’s occurrence is due to negligence
(b) Expert may testify in highly technical cases (medical) on what “normal practice” looks like
(2) The defendant was at least one of the persons who was probably negligent
(a) there must be sufficient evidence to support the proposition that the negligence that caused the harm points to the defendant

Question 30

Res Ipsa Loquitur Extension

Answer 30

Ybarra/Anderson Exception: In medical cases, where each defendant had the right to control the instrumentality that caused the harm, all defendants can/will be held liable, even if the plaintiff cannot show more likely than not that one specific defendant caused the injury

Question 31

Res Ipsa Loquitur does not apply if:

Answer 31

(1) plaintiff fails to show that all other potential causes or people are unlikely
(2) the defendant is able to point to another reasonable explanation of what happened
(3) Defendant is able to show that he was not involved

Question 32

Actual Cause

Answer 32

(1) If the harm more than likely would not have happened “but for” the defendant’s breach, then he is the cause in fact/actual cause
(a) Must look at the alternate scenario of what would have happened if the defendant did not breach → would the accident still have occurred?
(b) plaintiff must produce all critical knowable evidence
(c) courts will assess whether the defendant’s breach has a strong natural propensity to lead to the particular harm that occurred, creating a causal link

Question 33

Failure to produce critical knowable evidence

Answer 33

(1) If the plaintiff doesn’t provide all critical knowable evidence then it’s not certain that more likely than not the accident wouldn’t have occurred but for the defendant’s breach
(2) If there is a strong causal link between the breach and the harm, judges may be less demanding on the plaintiff to produce evidence than if there is a weak causal link

Question 34

Federal Rule of Evidence 702

Answer 34

Allows for expert testimony on technical issues to help establish actual causation, but the methodology must be scientifically valid
(1) Frye Test: whether the method used to obtain the evidence is generally accepted by experts in the field
(2) Daubert Test: focuses on methodology and weighs several factors
(a) Whether the method can be and has been tested
(b) Whether the method has been subjected to peer review and publication
(c) The method’s known or potential error rate
(d) The existence of standards controlling its operation
(e) Whether it has attracted widespread acceptance within the relevant scientific community

Question 35

Actual Causation and Failure to Warn

Answer 35

(1) Failing to warn creates a rebuttable presumption that the plaintiff would have read and followed the warning had one been given, and therefore but for the failure to warn the plaintiff wouldn’t have gotten hurt
(2) The defendant may rebut this presumption with evidence that the plaintiff wouldn’t have read the warning anyways and therefore failing to warn is not the “but for” cause
(3) There is no actual causation when risk of harm is generally obvious or if defendant can show that the plaintiff knew of the danger

Question 36

Indivisible Harm → Multiple Necessary Causes

Answer 36

(1) Where separate acts of breach from multiple defendant’s combine to produce a single indivisible harm, each defendant is jointly and severally liable for the entire harm, even though his act alone might not have caused it
(2) Concurrent Causes: two or more defendants breach at the same time, causing indivisible harm
(3) Successive Causes: when one defendant breaches first and then another defendant also breaches later in time, causing indivisible harm

Question 37

Loss of Chance Exception to Actual Cause

Answer 37

(1) Majority Jurisdiction: where plaintiff’s chance of recovery was less than 50% before the defendant’s breach, the plaintiff may still recover partial damages even though the harm would still likely have occurred but for the defendant’s breach
(a) If chance of recovery was above 50% before the defendant’s breach then “but for” causation will still be used
(b) Damages = (what plaintiff’s chance of recovery would have been without the breach) - (their actual chance of recovery now with the breach) x (total damages for harm)
(2) Minority Jurisdiction: Plaintiff must still use traditional “but for causation,” and if chance of recovery was below 50% to begin with, then plaintiff cannot recover
(3) Minority Jurisdiction: Sometimes courts consider whether lost chance was a substantial factor in the harm and awards FULL damages

Question 38

Concerted Action Definition Exception to Actual Cause

Answer 38

A form of vicarious liability that suggests that each person who actively takes part in and agrees to a common plan or design to commit a tortious act, or furthers it by cooperating, requesting, lending, aiding, or encouraging the wrongdoer, is equally as liable regardless of whether they are the “but for” cause

Question 39

Concerted Action Elements

Answer 39

(1) The person allegedly acting in concert must have known, or should have known, of the underlying wrongful conduct of the person causing the actual harm
(2) The defendant’s conduct must be a substantial factor in producing the harm
(3) Agreement to cooperate in the plan can be made verbally or nonverbally
(4) Triggers joint and several liability damages
(5) Not a good argument for plaintiffs that have any contributory negligence because then defendant will argue that the plaintiff acted in concert too

Question 40

Factors considered when determining whether defendants acted in concert:

Answer 40

(1) the amount of assistance given by the defendant
(2) his presence or absence at the time of the tort
(3) his relation to the other, and
(4) his state of mind

Question 41

Multiple Sufficient Causes Exception to Actual Cause

Answer 41

(1) If multiple acts occur, each of which alone would have been sufficient to cause of the harm, each act is regarded as the “but for” cause of the harm
(2) Defendant will argue that they are not a “but for” cause because the harm would have still happened regardless of their conduct but the 3rd Restatement has made this exception

Question 42

Alternative Liability Exception to Actual Causation

Answer 42

(1) When it’s uncertain and practically impossible to determine who caused the specific harm to the plaintiff, alternative liability may be used
(2) Where there are multiple people, by their actions, who are the only possible cause of harm, and the plaintiff has introduced evidence that one of the people is responsible but can’t prove who, each defendants has the burden of apportioning liability and proving who the actual cause is
(3) Where the defendants cannot apportion liability, they are jointly and severally liable

Question 43

Alternative Liability Arguments

Answer 43

(1) Defendant’s will argue that neither one of them is more likely than not to have caused the harm, this becomes especially true the more defendants there are
(2) Plaintiff will argue that each defendant imposed an equal risk of harm upon him/her and therefore should be held liable for imposing the risk of harm or prove who the actual “but for” cause was

Question 44

Proximate Cause Definition

Answer 44

(1) The defendant’s liability is limited to those harms that are related to and within the scope of foreseeable risks of harm created by the defendant’s breach
(2) Courts look at whether the plaintiff’s harm is of the general type that makes the defendant’s conduct breachy in the first place

Question 45

Proximate Cause Application

Answer 45

(1) In defining the foreseeable risks of harm, we can’t be too broad or too narrow → relate the actual harm back to the risks created by breach
(2) The manner in which the harm occurs is irrelevant, so long as the harm was foreseeable
(3) The defendant is still liable for unlikely but foreseeable harm
(4) Once the scene is stabilized and circumstances return to status quo, proximate cause no longer exists

Question 46

Eggshell Plaintiff

Answer 46

The extent of injury doesn’t need to be foreseeable, only the type of harm that occurred. Defendant is liable for the full extent of injuries as long as the harm was foreseeable
(1) There has to be a physical injury, but defendant can be liable for all resulting psychological harm that is triggered by the physical injury (even if the emotional issues were pre-existing)
(2) Exception: defendant’s are not liable for additional injury resulting from plaintiff’s religious beliefs if the additional injury could have been avoided

Question 47

Medical Malpractice and Indivisible Harm

Answer 47

Medical Malpractice: Defendant 1 who caused an accident will likely be held liable for Defendant 2’s successive medical malpractice in attempt to care for plaintiff because later medical malpractice is “foreseeable” under the direct consequences test (unless grossly negligent) → If Defendant 2 cannot distinguish his portion of liability, then he will be held jointly and severally liable for the entire indivisible harm

Question 48

Direct Cause/Consequences Approach

Answer 48

Where there are no intervening causes, a defendant may be liable for the natural and probable consequences that directly flow from his breach, even if it’s not the exact type of harm one would expect

Question 49

Intervening Cause

Answer 49

(1) Another act that happens between defendant’s breach and plaintiff’s harm
(2) if the other act is foreseeable then it does not break proximate cause
(3) if it’s not foreseeable it is considered a superseding cause and breaks the proximate cause chain

Question 50

Superseding Cause

Answer 50

(1) An act, person, or event, that occurs between the defendants breach and plainitff’s harm which is so bizarre, unexpected, or unusual, and not within the scope of foreseeable risks of harm created by defendant’s breach, is said to break proximate cause
(a) Criminal acts by 3rd parties may constitute as a superseding cause where the specific criminal conduct was unforeseeable
(b) Acts of God that are unrelated to the defendant’s conduct will likely be superseding causes
Exception: If the actor’s conduct “sets up” the circumstances under which the act of God occurred and caused further harm to the plaintiff, then the act of God likely won’t function as a superseding cause

Question 51

Rescue Doctrine “Definition”

Answer 51

(1) The rescuer doctrine states that where an individual attempts to rescue another from defendants tortious conduct, the rescuer will not be considered a superseding cause because it’s foreseeable that 3rd parties would try to help in emergency situations
(2) Therefore, the defendant is liable for rescuer’s harm and for additional harm caused by rescuer so long as the rescuer’s actions were “normal”

Question 52

Rescue Doctrine Application

Answer 52

(1) “Normal” is anything that is natural under the circumstances of an emergency situation → doesn’t mean reasonable, may be frantic and illogical
(2) A person who is mistaken but reasonably believes that rescuing is necessary will still be covered under the rescuer doctrine
(3) The person must actually undertake physical activity in attempt to rescue in order to be covered under the doctrine
(4) Telling a rescuer to leave does not negate defendant’s liability to the rescuer
(5) Good Samaritan Laws: protect rescuers even if they are negligent in their rescue attempts, therefore a rescuer would need to act maliciously to be held liable under the doctrine of comparative fault

Question 53

Type of Damages

Answer 53

(1) Compensatory
(2) Punitive

Question 54

Economic Loss Rule

Answer 54

(1) Plaintiff cannot recover for economic loss, typically financial loss resulting from a product failure, if there is no injury to persons or property

Question 55

Compensatory Damages

Answer 55

Goal: compensate innocent parties for their injuries

(1) Lost earnings, including promotions
(2) Lost future earning capacity
(3) Medical expenses
(a) Single recovery rule: plaintiff only gets one shot at determining how much their future medical expenses will be → so if they aim too low and it ends up being more expensive, they cannot request more
(4) non-economic damages
(a) Pain and suffering
– Grief, anxiety, physical pain
(c) Loss of enjoyment of life
(d) Loss of consortium

Question 56

Punitive Damages

Answer 56

Goal: punish and deter wrongdoers for their behavior

(1) Usually need to prove liability by clear and convincing evidence
(2) Usually involves willful, reckless, or malicious conduct
(3) Jurisdictions usually have caps on punitive damages

Question 57

Affirmative Defenses

Answer 57

(1) Assumption of the risk: if plaintiff assumed the risk through their conduct, this may negate defendant’s duty to plaintiff

(2) Contributory and Comparative Negligence: defendant may claim that plaintiff did not act reasonably under the circumstances to avoid or minimize harm to themselves, thereby contributing to their own harm

Question 58

Express Assumption of the Risk

Answer 58

(1) express assumption of the risk is an affirmative defense that occurs when a plaintiff clearly accepts specific risks or specific claims, such as negligence, by signing a waiver
(a) Waiving “all risks inherent in the activity” ≠ waiving all negligence because inherent risks are already covered by implied assumption
(b) Waiver must be signed freely, not under duress
(c) It functions as a complete defense because the assumption removes any duty defendant would otherwise owe to the plaintiff

Question 59

Implied Assumption of the Risk

Answer 59

(1) when a plaintiff voluntarily participates in an activity offered by defendant with well-known risks, he/she is said to impliedly accept those risks
(a) The risk must be inherent in the activity, plaintiff does not assume other non-inherent unrelated risks
(b) Complete defense because the assumption removes any duty defendant would otherwise owe to the plaintiff

Question 60

Secondary Implied Assumption of the Risk

Answer 60

(1) When the defendant is engaged in risky conduct and plaintiff chooses to engage in the risky conduct with defendant, despite knowing of the risks associated with defendants conduct
(a) Although defendant owed a duty to plaintiff and probably breached it, plaintiff acted unreasonably by engaging in the known risky behavior and therefore may be held liable under comparative negligence
(b) Sometimes plaintiff’s decision to engage in risky behavior is not unreasonably → in deciding to rescue another in a dangerous situation

Question 61

Contributory negligence

Answer 61

(1) Any responsibility on the plaintiff’s part, bars his/her recovery
(a) Minority jurisdiction approach → only 4 states

Question 62

Pure” comparative negligence

Answer 62

(1) The plaintiff’s total recovery is reduced by their own percentage of fault, therefore the defendant is only liable for his or her percentage of harm
(a) There are no limits or bars and plaintiff can recover even when defendant was just 1% responsible

Question 63

Modified comparative negligence

Answer 63

(1) Plaintiffs are barred from recovery if their negligence equals or exceeds that of the defendants
(2) Some states bar recovery if the plaintiff is more or equally responsible (50%), others bar recovery if the plaintiff is more responsible than the defendant (51%)
(3) Multiple Defendants:
(a) Minority approach: plaintiff’s percentage of fault is individually compared to each of defendant’s percentage of fault and if it is more, then plaintiff cannot recover
(b) Majority approach: defendants’ percentage of faults are combined and then compared to the plaintiff’s percentage of fault, if the plaintiff’s fault is less than the combined fault of defendants then he/she may recover, if not then plaintiff is barred
(c) If defendants are jointly and severally liable, then plaintiff can recover the total percentage of harm from either of them

Question 64

Joint and Several Liability Ocurrs when

Answer 64

(1) Indivisible Harm
(2) Concerted Action
(3) Alternative liability